The theme of "Construction of Law" has two major purposes, which are expected to serve to develop the new perspective of socio-legal studies. Firstly, this theme aims at the integrate understanding of the reciprocal interaction between law and society. Law constructs social reality on the one hand; law is constructed in the society on the other hand. By setting the theme of "Construction of Law", we try to understand and to explain this reciprocal construction process of law and society from an integrated perspective. Furthermore, deconstruction of law will be also achieved under this theme. By tracing the process of formation of the existing law historically and interpretatively, the contingency of the existing law will be revealed and the alternative view of law and society will be developed. Secondly, the socio-legal approach to the concept of "Rule of Law" is aimed at. Since 1990s the Japanese Government has proposed various reforms of existing social system in Japan and justified these reforms by insisting of the establishment of "Rule of Law" in Japanese society. But what sort of "Rule of Law"? Which law rules the society, and how? "Rule of Law" doesn't always mean a unity and coherence concept of social ordering, but rather contested concept. By focusing reciprocal construction process of law and society, we attempt to analyze various aspects of "Rule of Law" from socio-legal perspective and to enrich our ability to design the Japanese society and social life.
Constructionist paradigm is becoming the major theoretical framework in the field of Sociology of Law in the 1990s. This paradigm pays much attention to an emergent social order in the everyday life rather than to the social norms and institutions controlled by laws. But it has been severely criticized because it can not objectify the actual processes of the real world such as genocide, violence and displacement. Thus, the once powerful paradigm of rational governance of law has revived. This article aims to give critical consideration to both of them (constructionism and essentialism of law) and by making full use of narratives on justice in a small community, it will present the third course of generating social order. The experiences of South African TRC are case-studied here. In its activities, narratives by 'ordinary' persons are given a central position rather than formal, documented evidences. Though they are inconsistent, emotional and too trivial, those narratives are treated as lived voices representing the truth. This kind of truth, dialogue-type is examined in this study, which is completely different from another type, microscope-type truth. It will conclude that these narratives based on everyday practices of a small community have the potential power for deconstructing the imposed legal order.
My article deals with a long-neglected question on Japanese defamation law: when a court order is a "specific performance"to restore a victim's reputation, should it be considered mandatory or optional? My aim is to make an inquiry into the "coercive" nature of a court's decision. Several dichotomies and antinomies, which I took from both French and English legal traditions, have been given an analysis: remède and remedy, réparation en nature and répatation par équivalent, exécution volontaire and exécution forcée, as well as enforcement and accomplissement.
This paper deals with how law manifests itself in everyday communication by analyzing a case. This case concerns friction between A, who is going to build a house, and B, A's neighbor. In the course of negotiation a statement came up drawing directly on legal language as follows: "If you destroy another' s property, without any doubt the crime of destruction of property arises." It is generally believed that referring to law involves justification by law. But in this case it's not true that the certainty of B's claim is reinforced by the certainty of law. Instead the utterance "arises without any doubt" raises simultaneously the idea that there certainly is some kind of law that applies and that B's claim is a certain one. With this self-fulfilling de-contextual display of certainty, B suggests that the dispute may escalate into a lawsuit, as well as the possible interjection of a professional into the discussions. In response, A asks B to come and discuss the matter together right on the building site. Since this site is precisely where they came to a definite understanding about the workmanship, A is confident that meeting on the site would allow them to make certain not only the past understanding but also understandings for the future. Each way of negotiation figures among methods used in everyday life. Still, A's proposal, "Why don' t we meet on the site and talk things over directly?", seems to imply a locale where words must make sense within the process of everyday communications, in other words a place where activities of "face-to-face understanding" occur. Legal discourses often suppress or exclude these activities. But if any "legal" discourse is to make sense in everyday practice, its meaningful use in activities of everyday face-to-face understanding should be a test that it must pass.
For over a decade vigorous discussion has been taking place among scholars of Chinese legal history in Japan, the United States and China on the nature of the court decision in civil disputes during the Qing period. The focal point of the discussion concerns the questions "was the court decision on civil matters a judgment or mediation?" and "was the decision based on the law or not?" Naturally, the answers to the questions depend on the definitions of "judgment" and "law." Clarification of what was being done in the law courts of Qing China would help enrich our understanding of these concepts. Chapter 1 is an analysis of a series of documents in a dossier for a case concerning a dispute over household property division (Document number 22615) in Dan-Shui Archive, a collection of administrative records of a local government in Taiwan during the late nineteenth century. The forty one documents in the dossier were produced by the parties in the dispute, their relatives and the government officials from the beginning to the end of the dispute over a year and a half. In Chapter 2, based on my analysis in the first chapter I present the following theses: (1) the framework of dispute resolution in the courts of the Qing government did not rest on legal inference to find applicable law such as "land law" or "family law." Instead, it rested on the judge's ability to comprehensively evaluate the interests of the individuals involved and his intuitive sense of balance. A successful decision was regarded to be fair and consistent with "qingli" (reason and human feelings). (2) "Qingli" was not regarded as something that existed prior to the litigation or judge's decision. It was not something that the judge could "rely on" in making his decisions. It was "revealed" in a decision that successfully brought the dispute to an end. (3) It would be possible to understand decision-making at the court not as the process of application of a given norm to the decision on a particular case. Instead we can understand it as the process of arriving at a shared sense of balance between the parties involved as well as the general public which observantly followed the case. The judge's decision can be characterized as an articulation of the "commonly shared opinion" of those who were involved. Because of this the court had the power to compel the parties in the lawsuit to accept its decision. (4) In a sense "qingli" is particularistic because it appears in various manifestations in ad hoc decisions on numerous kinds of cases. At the same time it is universalistic because it is an expression of the commonly shared sense of justice. Perhaps it can be appropriately called "law" in its broadest definition. Still it was not regarded as the norm for decision making.
Claims-making is a key concept in constructionist studies on social problems. This concept makes it possible to see both social problems and legal phenomena as process-achievements within a sequence of situated activities. From this claims-making perspective, this paper proposes a few research topics. One of those is a "translation" problem. A various "social problem" claims and "everyday" claims are inevitably "translated" into legal claims when they move into legal arena. What various parties, including legal and other experts, do when the "translation" is taking place is an important question, both theoretically and practically.
In this essay the author argues that constitutive perspective of law should be integrated in the traditional methodology of socio-legal studies. The author shows various legal institutions as a site at which law is being constituted on a micro level. He suggests that, among others, the interaction between lawyers and clients, and the role performance and ethics of the former are essential in a process of constructing law. The importance of struggle and compromise between those concerned around constructing and establishing the legal institutions themselves is also emphasized. He mentions that the Japanese sociologists of law should analyze what the idea of "rule of law" means, promises and brings about in the Japanese society by way of focusing on the site of legal institutions and construction of law there.
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.
International legal studies have generally divided the legal process into two: creation and application of international law. Within this general framework, research has advanced along various tracks: (1) the study of legal or normative consciousness in international society, often expressed as opinio juris; (2) the study of creation of international law, which is composed of customary norms and treaty norms; (3) interpretative studies of the rules and principles of existing international law; (4) the study of jurisprudence of the judgments of the ICJ and arbitral awards; (5) the study of international disputes and their settlements through international law; and (6) domestic implementation of international law mainly through domestic courts. However, it is difficult to grasp the international legal phenomena in their totality via these studies, because international lawyers generally conduct these studies independently hardly taking other studies into consideration. In order to grasp the dynamics of the totality of international legal phenomena, we need a theoretical framework through which we can observe a comprehensive process of how international law is realized from a vague normative consciousness and/or from the birth of a strong interest that requires a particular form of law to realize it. We want to see how this coalescent idea or interest becomes more defined as it progresses toward the assertion of lex ferenda, to the negotiation and drafting of a treaty, to its adoption and ratification by state parties, to its introduction into the domestic system of the state parties and its actual realization in their domestic political, economic, social and cultural processes. We may call this comprehensive process a "law-realizing process." To operationalize this concept of a law-realizing process, we need three perspectives from which we may observe international legal phenomena: international, transnational and trans-civilizational. The international perspective mainly pays attention to inter-state, i.e., trans-governmental activities. The transnational perspective is concerned with transnational activities of non-state actors, mainly corporations and NGOs. The trans-civilizational perspective pays attention to various cultural, religious, linguistic and historical factors that are often overlooked by basically West-centric international and transnational perspectives. With these three perspectives, we seek to grasp international legal phenomena by basically categorizing them into two groups: (1) the law-realizing process of reciprocal norms such as the norm regulating the width or the boundaries of a territorial sea, and (2) the law-realizing process of norms embodying international public values. The interpretative undertaking of international lawyers themselves constitutes one phase of the law-realizing process, and as such, is an object of critical analyses of this law-realizing process.
In der japanischen Nachkriegsgesellschaft ist es eine sehr wichtige Aufgabe fur die soziale Bewegung gewesen, die verschiedene subjektiven Grundrechte zu uben, oder die neue Rechte zu behaupten, um die Existenzberechtichkeit der sozialen Schwachen, oder die Freiheit der Burger nicht nur in "law in book", sondern auch in "law in action" zu etablieren und erweitern. In der Tat hat die Behauptung des subjektiven Rechts eine große Rolle gespielt. Aber andererseits hat man in der Zwischenzeit auch ihre negative Aspekte oder die Grenze bemerkt. Diese Zweideutigkeit der Behauptung des Rechts soll etwas näher analysiert werden, nämlich 1) als Widerspruch zwischen Rechtssubjektivität im Warenverkehr und Subjektslosigkeit im Produktionsprozess, 2) als Inklusion des Subjekts ins System durch Rechtsverwirklichung, 3) Dilemma des distributiven Rechts im Wohlfahrtsstaat, 4) als Unangemessenheit der Rechtsbehauptung für die alternative soziale Bewegungen, die z. B. die biologische Agrarprodukte nicht als Ware und die Beziehung zwischen dem Produzent und Konsumment nicht als Warenbeziehung begreifen, und eine gemeinschaftliche Beziehung zwischen der beiden etablieren zu versuchen.
A State Mobilization Theory of Modernity tries to understand the modernity from a totally different point of view which the traditional social sciences have not presupposed so far. This report is one application of the theory to the historical role and significance of the so-called modern law.
Since 1970s, study of ownership regime in relation to the environmental conservation has been one of the major topics for the field of environment and society. This study tries to seek the possibility of indigenous process of ownership of nature in order to construct the legal order for environmental conservation. For this purpose we introduce the idea of "life-environmentalism" where indigenous people's sense and experience in everyday life with relation to the behavior for environmental conservation issues are thought to be the major analytical frame. We have made cross-cultural study of ownership regime of land and water space in Japan, USA and Africa, particularly Malawi. What we have found out is that the sense of ownership of nature is strongly related to the indigenous family structure and inheritance system; nuclear family in the USA, stem family in Japan and extended family in Malawi. In the nuclear family system, the ownership regime is based on the individual private ownership in tandem with the modern legal system. Stem family system, especially in Japan emphasizes the communal ownership called "souyuu" where actual needs of resource utilization and resource management participation are emphasized. Extended family system in Malawi does not have strong sense of ownership per se and space boundary has not been clearly defined. Rather the land and water space is thought to belong to the God world. Although the modernization process has strengthen the idea of private and public ownership of natural resources originated from Western nuclear family, we need to consider the meanings of indigenous ownership regime for the resource utilization and conservation in each cultural settings.
This article examines legal education reform in Japan from a comparative perspective. The article begins by suggesting the existence of deep-seated, albeit relatively quiet, resistance to the reforms among academics in Japan. After noting that foreign observers routinely ask why these reforms are occurring now, the article argues that the better question is not why reform was deemed necessary at all, but rather why reform did not occur even earlier. The article reexamines several longstanding concerns relating to the legal profession and legal education, including concerns over increasing the size of the bar, achieving greater diversity in the legal profession, overcoming the tunnel vision of those aiming at the bar examination, ensuring open access, overcoming the compartmentalization of education, expanding interdisciplinary education, achieving awareness of the total non-legal environment, and devoting attention to teaching methods and teaching effectiveness. The article argues that these and other longstanding concerns well warrant fundamental reform. The article then considers whether the current reform proposals are likely to alleviate the concerns identified, expressing optimism with regard to some aspects, hopefulness with regard to others, and continuing concern with regard to still others.
As environmental problems became more serious in recent years, new views of the matter, from which rivers, seas, forests and the like were regarded as "Commons", were took in two ways. Some people thought such natural environments to be common property of neighborhood and proposed new categories such as the right of access to waterside, seaside and nature under the concept of the right of environment. Other people recognized traditional categories such as the right of water, fishery and common land to be the legal system, which secured the efficient and sustainable common-use of such natural resources. This paper characterizes both categories of right of commons as "Communal Right" and describes how the latter rose, declined and revived by contrast with rise of the former, under the title "The Dynamics of the Right of Commons".