法社会学

特集の企画にあたって

名和田是彦

2003 年 2003 巻 59 号 p. 1-4
発行日: 2003/09/30
公開日: 2009/04/22

DOIhttps://doi.org/10.11387/jsl1951.2003.59_1

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地域社会の法社会学的研究の理論枠組の試み

「領域社団」理論にむけたマックス•ウェーバーの再読

名和田是彦

2003 年 2003 巻 59 号 p. 5-21,249
発行日: 2003/09/30
公開日: 2009/04/22

DOIhttps://doi.org/10.11387/jsl1951.2003.59_5

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Studies on the themes, which focus upon the special relevance of the territoriality of social actions, have been much developed in Japan. A general theory is now expected to be constructed. German Jurists in the 19^th century, especially Otto von Gierke and Hugo Preuss, recognized the importance of the territorial organization of political power and constructed the concept of "territorial corporation (Gebietskörperschaft)". Max Weber found this concept useful for sociological analysis and tried to reconstruct the juristic theory into a sociological in his late work of "Economy and Society", 1^st Part.
Not only this concept but also some other concepts closely related to it, for example "order", "political organization", "special law", "autonomy" and so on, are to be reexamined and their implications for our sociological researches of territorialities, namely neighborhood, local communities, municipalities and cities, prefectures, provinces, states, regions and so on, are to be found.
In almost every country in Asia there is a peculiar territorial organization which is private but claims a territorial validity of its own order.
In European-continental countries, in contrast to the anglosaxon countries, where both local and central governments are similar in the sense that they are governments, local communites and municipalities have been seen as different from the state, which can make "law" and regulate rights and duties of people.
From a sociological point of view these various types of territorialities should be observed as similar territorial organizations, free from juristic ideologies, which trend to set too rigid a distinction between private and public, between autonomy and sovereign, between local community and state.

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広域地域と法: 東アジア地域を例として

安田信之

2003 年 2003 巻 59 号 p. 22-36,250
発行日: 2003/09/30
公開日: 2009/04/22

DOIhttps://doi.org/10.11387/jsl1951.2003.59_22

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Community is defined as "a group of people living together in one place", or "a place considered together with its inhabitants" (Concise Oxford Dictionary), which has various meanings and sizes from small "local community", to "national/state community", more widely to "supra-state/regional community", or even to "global community" in widest sense, as far as people feel "living together". This paper, however, focuses on the evolutional process of supra-state/regional communities and its implication in the legal system of contemporary world, contrasting with the parallel trends of the recent revaluation of the role of local communities in social life. Because both communities have become more and more important, while state community has started losing its supremacy shown in "the Retreat of State" by Suzan Strange, as a result of the Globalization accelerated since the 1980s.
For this purpose, first, I will examine the process of development of these three communities both in Western and Asian societies since the evolution of modern state. Second, I will pick up the case of ASEAN (Association of South East Asian Countries) in order to illustrate the development of a supra-state regional community in Asia, and examine the direction of its expansion to more wider "East Asian Community", together with East Asian countries like China, Korea and Japan, after facing serious economic and political crisis at the closing of the 20^th Century. Last, as a conclusional part, I will propose the idea of multi-dimensional legal structures, which consist of supra-state, state and local community laws, in order to understand the legal phenomena of these supra-state/regional communities as a whole.

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法と住民の狭間

自治体行政のディレンマ

阿部昌樹

2003 年 2003 巻 59 号 p. 37-53,250
発行日: 2003/09/30
公開日: 2009/04/22

DOIhttps://doi.org/10.11387/jsl1951.2003.59_37

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Law requires local governments to pursue the general welfare of local residents. It is also a legal requirement for local governments to obey all legal rules. From juristic perspective, it is a matter of course that the latter requirement precedes the former one. In the actual practice of local public administration, however, this precedence is often inverted because of some structural factors which condition the processes and the decisions of local public administration.
Legal disputes concerning the resident registration of the members of a religious cult Aum show such an inversion of legal precedence. A number of local governments have refused the resident registration of Aum members for the reason that collective residence of Aum members would jeopardize local residents irrespective of the recognition that such refusal should be illegal. Close examination of those legal disputes suggests, however, that a dilemma as to whether to pursue the general welfare of local residents or to obey legal rules is not an objective reality but a socially constructed subjective one resulting from the adoption of a particular interpretation of relevant legal rules.

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コミュニティ開発法人の思想的•歴史的基層としての近隣住区政府

宗野隆俊

2003 年 2003 巻 59 号 p. 54-69,250
発行日: 2003/09/30
公開日: 2009/04/22

DOIhttps://doi.org/10.11387/jsl1951.2003.59_54

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Sometimes, in America, community development corporations are expected to play roles in place of public sector, and they do play them. I guess that community development corporations have functioned as the alternative governments, and their functions have been made in the institutional history. And I think that the institutional history has been made in the american traditional neighborhood government. The neighborhood government is not merely the production of idea. It has really existed in the american local institutions.
The neighborhood government is another one different from other level of governments. In the era ofparticipatory democracy, it governed the neighborhood area. People were not only governed by neighborhood government, but they participated directly in the politics of the government. The neighborhood government is a prototype of participatory democracy, and it shares a lot of features with community development corporations.
In this article, I try to read the presence of the neighborhood government in the works of Milton Kotler, and to reconsider the significance of his theory.

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フランスにおける近隣住区の機能とその制度化

都市計画における参加と訴訟の関係

高村学人

2003 年 2003 巻 59 号 p. 70-89,251
発行日: 2003/09/30
公開日: 2009/04/22

DOIhttps://doi.org/10.11387/jsl1951.2003.59_70

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En France, récemment, dans le discours politique et juridique, on met l'accent sur l'importance de «proximité»et de«quartier». Cet étude analyse ce phénomène, spécialement dans ledroit d'urbanisme en prêtant l'attention sur le rôle de comité de quartier. Le résultat d'enquête sur la mise en oeuvre des lois de S.R.U et de démocratie de proximité dans les villes de Grenoble et de Nîmes montre l'ambiguité de ces lois et le rapport entre la satisfaction de participation et la probabilité de contentieux.

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日本農村における共同性

伝統的地域組織を中心にして

林研三

2003 年 2003 巻 59 号 p. 90-106,251
発行日: 2003/09/30
公開日: 2009/04/22

DOIhttps://doi.org/10.11387/jsl1951.2003.59_90

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This paper aims to analyze a traditional local organization in the Japanese farm village. This village organization has been called Mura so far. I refer to the case of Kamihaneda-Kitakata, Yokaichi City in Shiga Prefecture in this paper. There are some rituals now. For example, there are Murairi-ritual, Soyori (an annual meeting of the representatives of ies that are Mura-members), and Jinji practiced in Soyori. An ie to provide a place to hold Soyori in January ever year is called Toya. Mura-members take turns providing a meeting place of Soyori. Murairi-ritual is a rite of passage to become a member of the Mura in Kitakata. The ie that newly becomes the member must take change of Toya in the next year, and the ie-head must become the member of the age group called Wakaisi for two years if he hasn't. Jinji is a ritual praying the peace and the welfare in this hamlet. They make the Mura as "institutional fact" with practicing a series of rituals mentioned above.
Furthermore, ies are bound together n ot only by blood but by a shared territorial bond. These are called Sorensinrui and Tonari here. Sdrensinrui are the relatives who reside in Kitakata and practice the funeral-ritual as master. Tonari consists of three or four adjacent houses, involved in everyday mutual aid relations. These relations do not directly influence the execution of the various rituals mentioned above, but both the Mura and these ie-combinations have an ie held as a unit.
In Kitakata, there are another relations that are not ie-combinations. They are relations between the individuals and the individuals, and some inhabitants of Kitakata are also related to ones that do not live here. That is to say, there are three commonalities created by these three relations. And three relations compose a flexible structure, with influencing one another and keeping a balance among them. I conclude that this flexible structure forms a Mura as "a traditional local organization" with taking various types in Japanese farm villages.

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農地制度と農業集落

楜澤能生

2003 年 2003 巻 59 号 p. 107-124,251
発行日: 2003/09/30
公開日: 2009/04/22

DOIhttps://doi.org/10.11387/jsl1951.2003.59_107

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The social structure of villages has long been seen as an undesirable feature of Japanese society. For centuries, it provided a mechanism through which landlords could control farmers. Before postwar land reform, it served as the basis of pre-modern feudal relations. Today, it is thought to be an obstacle to economic competition in an increasingly globalized world economy.
Yet the organization and function of rural communities is not exclusively negative; it also has desirable qualities. It has enabled small farmers to better manage their land, and facilitated coordination between individual farmers. More generally, it has provided a structure of governance in farming communities.
As demands for the opening of the Japanese agricultural market escalate, the structure and function of rural communities demands reexamination. This article analyzes the past and present characteristics of rural communities; how they manage, coordinate, and utilize land; enable the survival of farmers in small villages; and promote the development of sustainable agriculture. In doing so, it takes rural communities seriously by placing them in a richer and more complex context than many previous writings.

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都市コミュニティにおける法使用

建築協定制度の運用過程を素材として

長谷川貴陽史

2003 年 2003 巻 59 号 p. 125-140,252
発行日: 2003/09/30
公開日: 2009/04/22

DOIhttps://doi.org/10.11387/jsl1951.2003.59_125

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This paper deals with the Kenchiku-Kyotei [construction agreement] system. This system, which resembles the deed restriction or restrictive covenant systems in the United States, is used especially in suburban areas in Japan in order to protect the residential environment of the neighborhood by utilizing contractual agreements to establish restrictions on land use.
This paper sets forth a study of two dispute settlements involving Kyotei areas, one case concerning a violation of height-control restrictions and the other concerning construction above flood control basins.
This study reveals intersections between the legal system and the world of everyday life when people seek to enforce legal rules in the neighborhood. These intersections can be analyzed from four different viewpoints, that is, social role, expertise, de facto operation of organizations, and social norms.
As Giddens puts it, we should not assume either that an abstract legal system "colonises" our everyday world, nor, on the contrary, that such a system operates without reference to the social relations or day-to-day contacts with others.
Rather than make either such assumption, we should observe and analyze the intersection between law and everyday life, as well as the manner in which systems operate in practice, as those phenomena actually occur. Through such concrete observation, we find that, in the urban area, people are reembedded in social relations and construct their concrete everyday lives by skirting the abstract legal system.

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地域と福祉政策

自治体行政計画を例に

井上英夫

2003 年 2003 巻 59 号 p. 141-157,252
発行日: 2003/09/30
公開日: 2009/04/22

DOIhttps://doi.org/10.11387/jsl1951.2003.59_141

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In this paper, I discuss relations between welfare policy and community and the participation of inhabitants. Specifically, I introduced welfare action plans for Kanazawa City. I also pointed out the effectivity of the community action plan on welfare and the importance of participation of inhabitants of Kanazawa.
Introduction
I Welfare Policy and Action Program of Local Government
II Action Plan on Welfare for Local Government and the Community
III Normalization and the Action Plan on Policy for Persons with Disabilities
IV The Outcome and Issues related to Action Plan on Welfare Policy and Participation of local Inhabitants
Conclusion -Human Dignity, Self-Determination and Participation

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裁判官選任過程と司法の民主的正当性

法曹一元構想における市民参加の系譜から

馬場健一

2003 年 2003 巻 59 号 p. 158-174,253
発行日: 2003/09/30
公開日: 2009/04/22

DOIhttps://doi.org/10.11387/jsl1951.2003.59_158

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This paper traces the history of the plans advocated by the Bar Associations, other groups and individuals to select judges alternative to the present continental 'Career System' in Japan. The present system has been criticised for more than a century by the Bar and liberal lawyers as bureaucratic or undemocratic. They have insisted that it be abolished and the alternative selection system be introduced in which judges would be selected from mature and experienced practising lawyers as in Anglo-American judiciaries.
In reviewing various plans of what they call 'the Unified System (HOUSOU ICHIGEN)', this paper focuses on the citizen participation programme in the selection committee proposed. Originally the idea was nonexistent or only peripherally included and the initiative was almost exclusively in the Bar's hands. Gradually such lawyer centred plans have given way to substantial participatory proposals and finally merge with the idea of 'the Lower Court Appointment Counsel Committee' resulted from the recent judicial reform in which the number of non-lawyer members exceeds that of lawyers. The history shows how the original idealistic (and self-righteous) stance of the Bar has become more realistic and tactical through the political and ideological processes of the postwar experiences in the judicial reform debates and movements in Japan.

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制度変化のダイナミクスに関する一考察

林野入会制度の発生と近世における変遷を素材として

服部健吾

2003 年 2003 巻 59 号 p. 175-192,253
発行日: 2003/09/30
公開日: 2009/04/22

DOIhttps://doi.org/10.11387/jsl1951.2003.59_175

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It is impossible for conventional sociological theories to explain how spontaneous cooperative orders (institutions) emerge and how they transform.
Therefore, in this paper, adopting new assumptions such as bounded rationality, cultural norms as meta-norms, and evolutionary approach, I propose a game-theoretic model of the dynamics of emergence and transformation of a spontaneous institution. After that, I apply that model in explaining emergence and transformation of the traditional common lands of forest-and-fields (Iriaichi) in Japan.
With introduction of intensive rice firming, the cultural norm "Cooperative Actions are Good, " emerged. This cultural norm as a meta-norm led the emergence of Iriaichi type of land use. Then, because of development of market economy and decrease of Iriaichi, the efficiency of traditional type of Iriaichi was decreased. Being constrained by the sight, the range of institutional alternatives limited by the cultural meta-norm that made cooperative actions good, a gradual transformation of traditional Iriaichi use has been channeled by the efficiency as well as the cultural norm.
Here, a cultural norm affects an institutional change and then the institutional change affects the change of a cultural norm, which means that there is a bilateral spiral interaction in the institutional change.

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民間の紛争処理における技術移転と地域文化

パプアニューギニアにおけるレデラック理論の応用をめぐる一考察

石田慎一郎

2003 年 2003 巻 59 号 p. 193-208,254
発行日: 2003/09/30
公開日: 2009/04/22

DOIhttps://doi.org/10.11387/jsl1951.2003.59_193

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This paper examines the historical contexts and ideological construction of a peacemaking programme in the New Guinea Highlands. The author reveals that its establishment and development in the 1990s not only represents a response to the so-called 'tribal fighting' explosion in the region since the 1970s, but also exemplifies the worldwide ADR expansion in the 1980s and 1990s on the one hand, and the emergence of local intellectuals in the region on the other. Douglas Young, working as programme policymaker, adopted John Paul Lederach's elicitive approach to organize some workshops, where local participants are encouraged to discuss and promote their own skills and abilities of conflict resolution. Young believes that local indigenous knowledge, as a key resource for building peace, should be elicited for practical use through participatory research. Roderic Lacey, one of foremost oral historians in New Guinea ethnography, has been involved in fortifying the programme, and local participants also have shown great zeal in recording 'traditional wisdom'. It is not surprising that the programme has gradually changed its nature into oral-historical research on indigenous ways of conflict management in traditional local communities, since some of the participants are descendant from Lacey's school in the 1970s. Nevertheless, it is crucial that contemporary local practice found in present settings is not regarded in the workshop as a significant resource. The past in the region is romanticized and idealized, while the present in a predicament is neglected. The potential of village courts, classified by Sally Merry as a reformist ADR institution, are reduced to law application and enforcement. This paper concludes that the present 'antilaw movement' or a 'paradoxical switch' in the legal evolution paradigm (Nader 2002) ironically legitimises the way the peacemaking programme is conducted.

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機能する裁判員制度のために

地位に差のある集団意思決定の観察から

藤田政博

2003 年 2003 巻 59 号 p. 209-226,255
発行日: 2003/09/30
公開日: 2009/04/22

DOIhttps://doi.org/10.11387/jsl1951.2003.59_209

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The Japanese Government is going to adopt "Saiban-in seido" in its judicial system reform. "Saibanin" means lay member (s) of a judicial panel. In this system, a judicial panel will consist of citizens and judge (s). And panels will deliberate serious criminal cases in the criminal trial procedures. In this study, by observing the processes of group decision making, the author verified whether lay members could play active roles in the deliberations. 50 law students (juniors, seniors, and a master's course student) and 133 "lay" students (freshmen and sophomores) participated in the experiment. The participants who were assigned to "group condition" discussed a fictitious criminal case and decided whether the accused should be guilty or not. The participants who were assigned to "individual condition" did the same task without discussions. All utterances in the deliberations were recorded under the consent of participants. These utterances and questionnaires were analyzed. Compared the numbers of whole utterances, no statistically significant differences were found between "lay" students and law students. But in the analysis of categorized utterance numbers, law students uttered more often than "lay" students in the utterances concerning "proceeding with the deliberation", and "normative social influence". And the differences were statistically significant. Implications for practicing "Saiban-in seido" are discussed.

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Legal Education and Judicial Activism in Australia

Malcolm Smith

2003 年 2003 巻 59 号 p. 227-241
発行日: 2003/09/30
公開日: 2009/04/22

DOIhttps://doi.org/10.11387/jsl1951.2003.59_227

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Sally Engle Merry, Colonizing Hawai'i: The Cultural Power of Law

北構太郎

2003 年 2003 巻 59 号 p. 242-248
発行日: 2003/09/30
公開日: 2009/04/22

DOIhttps://doi.org/10.11387/jsl1951.2003.59_242

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