One of the social functions of litigation was a challenge to Japanese murky social ordering led by administrative agencies purporting to work up bublic opinions on policy matters. However, recent judicial reform is trying to turn the way of social ordering itself into more transparent one led by legal system. This paper examines the influences of this change of judicial circumstances on social function of policy-oriented litigation. Through analysis of the meaning of development of right consciousness and emergence of multiple channels for negotiation, I find the possibility of facilitation and control of those processed as an important role of litigation.

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Judicial decision is not only an application of law but contains law making by the judge. It is well-known since the american legal realism and the german free law movement found out it.
When we recognize it as a fact and furthermore use law making by the judge as an instrument for law making in order to settle the new coming problems in society, we should analyze the process of law making by the judge and try to adjust it to the principle of the separation of power between judicatory and legislative. Because law making should not be the task of the judge but belong to power of legislative.
In this paper we discuss the problem how we can control law making by the judge in order to prevent an arbitrary judgement and the methodology on judicial decision that controls the process of law making by the judge. In japanese and german context law making against statutory law can be permitted exceptionally. According to the methodology law making against statutory law (houritsu. Gesetz) must be made within the higher law order (ho. Recht). What is the higher law order? Sociology of law should research into this problem in collaboration with methodological jurisprudence.

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Justice System Reform Council decided to increase the number of the persons who will pass the bar examination up to 3000 by the year of 2010. On the other hand, the function of civil litigation is expanding because of the diversity of social values. The civil courts are the places for not only declaring existing rights but also making new rights and policies. In this paper, the relationship between dramatic increase of lawyers and expanding functions of litigation will be analyzed. First, the influences of insufficiency of lawyers on the social activity of lawyers in Japan are analyzed. From the analyses, the possibility is showed that Japanese lawyers work not for making new case law for the society but for binding the society to obey the existing law. Increases of such type of lawyers will not help the judicial systems to change well. In order to build well functioning judicial system, it is required for our society not only to increase the number of the lawyers but to develop a new model of lawyers who will facilitate law making and a new educational system that train such a new type of lawyers.

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The subject of this paper, referred to in Japan as 'policy-oriented contemporary litigation' (POCL), is lawsuits in which plaintiffs seek to obtain changes in governmental policies and laws. Mainly relying on pollution and environmental cases, this paper (1) summarizes the present situation of POCL, (2) evaluates the present situation from the viewpoints of different models of POCL, and (3) argues for further reforms of justice system.
The paper presents three models of POCL as heuristic devices for summarizing and evaluating the present situation of POCL: the first model seeks to obtain results as the direct consequence of a judicial decision; the second model, which is a variation of the first model, seeks to obtain results as the direct consequence of settlement after filing a suit, usually after obtaining a favorable decision from the court of first instance; and the third model seeks to obtain results as the indirect consequence of litigation itself when the government is not a party or when it prevails in court. An extensive examination of relevant cases leads to the conclusion that POCL has had little direct influence of judicial decisions. The clearest example is the failed social movement that sought to use the courts to establish the so-called environmental right (kankyo-ken). In addition, although one may recognize direct positive consequences from settlement or indirect positive consequences from litigation itself in a fairly large number of cases, they have rarely led to the creation of new legal rights.
This paper recognizes that with this situation of POCL as background, an increasing number of scholars argue that social movements should avoid litigation and should instead seek to use legislation to pursue their desired outcomes. For example, one prominent legal scholar argues that new legal rights that limit constitutionally-protected property rights should not be pursued through civil litigation, but that they should turn to the democratic process of legislation to enact laws and ordinances. A leading sociologist of social movements similarly argues that environmental NPOs and NGOs should collaborate with administrative agencies and businesses to produce new policies.
This paper argues, however, that litigation is both inevitable and necessary. The paper identifies several reasons for its inevitability and necessity: policy-makers and legislators do not always recognize the need for new policies and laws swiftly, correctly, or fairly; the legislative process is not necessarily open to all concerned parties, and excluded parties may want to turn to the judicial process when they experience injury or are concerned about future injury; collaboration or partnership between citizens and the government or business is not generally equal, and citizens may need to use litigation in order to maintain or create an equal partnership; there is no guarantee that administrative agencies use their mandated or discretionary powers even when they have such powers, and citizens may need to sue them in order to require them to use those powers, as indicated in the Supreme Court decision of October 2004 that held the national and prefectural governments liable for their failure to use administrative guidance by 1959 to prevent Minamata disease; except in the case of extremely technical provisions, the meaning of legal provisions is always debatable, and those who are unsatisfied with the current situation may want to challenge prevailing interpretations, ultimately through litigation; and the direct impact of settlement is generally obtained after a favorable decision at the court of first instance, while indirect impacts of litigation may be expected only after litigation is filed.

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McCann argues that the effects of legal mobilization by social movements should be understood as catalysts to stimulate social construction of right consciousness. Through the examination of the effects of legal mobilization in Japan, the direct impacts toward the policy making process are undoubtedly hard to be found. But the social construction of right consciousness should be understood as only a part of various indirect effects. Recurrently filed litigation has given other impacts toward the policy making process through various ways.

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Those who bring focus on policy-making and/or discussion-facilitating functions of civil litigation are interested not only in its consequences but also in its procedure. They claim unprecedented proceedings unique to each case and not focused on legal disputes. In a so-called "policy-making litigation, " interests of parties and the court tend to conflict on how to proceed it. Under Japanese Code of Civil Procedure, the court has decision-making power and discretion on procedural side of suits, which provides legal framework of procedural decisions. Interactions among three actors (parties and the court) with different interests lead to procedural decisions. In mass-tort litigations like HIV infected blood products cases and Hansen's decease isolation cases, we find that plaintiffs (or their advocates) have managed to carry thorough their demands on exceptional proceedings in exchange of their joint effort with the courts on case management.

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What is implied when the terms, "autonomous" or "independent" person, are used? Are there any differences to be drawn between the "autonomous" person, and the "non-autonomous" or "dependent" person?
With respect to these definitions, I assume "autonomous" to mean that that the surroundings or environment is one in which persons can acquire assistance or help when they wish for it, and not when it is unnecessary.
In this context, litigation in contemporary society can be understood to have the function of empowering people to pursue their own interests through the legal process. In other words, litigation can have a societal facet, in addition to its private facet, especially in the emerging area of the device of Amicus Curiae. Furthermore, the device of the McKenzie Friend, as voluntary supporter in litigation, is obtaining further social recognition, in spite of the fact that the McKenzie Friend is not presently given any recognised role in the law.
The analysis contained in this article will seek to prove that the legal process can contribute to the "autonomous" person in two senses: by providing legal empowerment and the achievement of access to justice for all litigants, and by realising the desire to support others. In that manner, both social inclusion and liberal altruism can be demonstrated via the legal process.

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This paper analyzes the civic movement and litigations which opposed the construction of apartment buildings along the 'Daigaku Dori', the main street in Kunitachi City.
In these litigations, the court confirmed that the builders violated the neighbor's right to scenery, and ordered them to demolish a part of buildings.
I focus on three topics as follows. First, how did the civic movement develop into litigations? Second, how was the right to scenery recognized by court? Third, are there any problems about judicial decision-making?
I point out that, in the process of the movement, the neighbors widened their views and many experts helped them, so that this protest movement resulted in court action. And the right to scenery won the approval when the courts adopted a new legal theory.
However, I argue that this new right should not have been justified by the ambiguous customary law. In addition, the court should make efforts to estimate of worth of the scenery. The city planning law also should be reformed in order to rejuvenate citizen's participation.

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This article analyzes the Self Defense Forces Enshrinement case filed in 1973. It focuses on the relation between reconstruction process of the plaintiff woman's religious identity and process of the litigation as a social movement, from A. Melucci's theoretical perspective of 'new social movements'. As a result of analysis it clarifies the following points. 1) The litigation functioned as the process through which the symbolic issue of challenging the State Shinto by the movement was legally defined. Thereby the issue was disclosed as the legal problem. 2) The needs of forming autonomous individual identities were subject to the litigation as a political action. Consequently the plaintiff's religious identity was reconstructed heteronomously by the movement as a counter power. 3) In the movement, the orientation to 'freedom of conscience', which could be 'freedom of autonomous forming individual identities', was subject to the orientation to the anti-war and anti-political power struggle. From the theoretical point of view, the case has a serious limit and indicates an important task: how the needs of autonomous forming individual identities can be made compatible with critics of war and political power.

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The present article analyzes the impact of the recent judicial reform on the rural community of Japan. It is based on the multi-methodological study project on rural justice in contemporary Japan. The project has been financially supported by JSPS no. 15330004 and the 21st Century COE program for Kobe University.
Firstly, the article reviews the major reforms in national law level. Though Japan has long been suffered from shortage of formal legal resources, the situation is rapidly changing because of the national judicial reform movement in last 10 years. The number of lawyer (bengoshi) in 2005 has increased by 50% compared with that of 1990: The Japan Federation of Practicing Attorneys (Nichibenren) has established the legal advice centers in all jurisdiction of local courts. The regulatory restrictions have been removed in such areas of advertisement and fees: The government enacted the "the comprehensive legal support act" in June 2004. However, the availability of legal services is still severely limited in small towns and cities in non-metropolitan areas.
Secondly it examines the nation-wide distribution pattern and its changes, for 1998 to 2002 period, of attorneys (bengoshi) and judicial scribners (shihoshoshi) in local court jurisdictions, and it finds that the attorneys are more concentrated in largest metropolitan areas than the judicial scribners; however, the number of judicial scribners is increasing in more of the urban areas and decreasing in more of the rural areas than the attorneys.
Lastly it qualitatively describes how the legal problems are resolved almost without resorting to attorneys in rural areas by reporting 4 case studies of small cities in rural areas. People in those areas usually rely on judicial scribners for legal remedies for such troubles as consumer problems, domestic violence, and debts. They also ask advices of the local police, local government's, especially the consumer protection agencies and their branches. In each of those areas, one or two active attorneys recently opened the publicly funded office of law in the community. It is also noticeable that not a small number of people hesitates to ask advice to the "foreign" attorney even in serious legal troubles.

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In this paper, I, first, examine the controversy on the rights system and discourse between the critique of rights by Critical Legal Scholars and the vindication of rights by Critical Race Theorists. This examination urges me to contend that what is needed is not abandonment of liberal rights but reconstructive approach to the existing institutional arrangements of liberal rights. To envisage and acquire the direction toward another conception and system of rights, I follow Roberto Unger's methodology (deviationist doctrine) and normative argument of social theory. Unger's radical project (Empowered Democracy or Super-liberalism) proposes alterative vision of more egalitarian and democratized society whose structures (formative contexts), Unger insists, are more self-revisable and plastic. I find out a supportive example for Unger's vision in the practice and ideal of so-called "New Social Movements, " and attempt to elucidate their stake and aspiration for more egalitarian and democratic social settings in private sphere. My sense is that Unger's vision is not at all far from the ideal of society and human association which is an emergent germination but still labeled as deviant. Finally, I turn into Unger's legal theory version of deviant doctrine and proposal, and paraphrase "immunity rights" and "destabilization rights." Even though these alternative proposal of rights is controversial and is frequently criticized for its idiosyncrasy and paradoxical characteristic, I contend that its ideals of heightening the context-revising capability of human beings and the self-revising character of institutional arrangements are essential not only because we can see its emergent germ in the movements' practices in private sphere, but also because ultimate justification of constitutional order comes from active invitation of ceaseless criticism toward the existing social settings and institutional arrangements by ordinary men and women. The deviant moment has to be interpreted as the representation of universal ideal of democracy.

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This article deals with the role of rights talk, taking a resident movement in Osaka as an example. According to the constructionism perspective, it elaborates the construction of a social problem as a relation of right made by the people against that as a relation of power made by the municipal government. By analyzing the agreement between them in terms of resource mobilization theory, it is manifested that the construction of strategic rights talk shapes the people's legal conscious and is the resource of the movement as well. In order to get the solidarity of the movement, it is essential to build collective identity. In this case, in poor existing relationship among the people whose only one common interest is to be a land owner, rights-bearer identity is formed and is supported by quasi-family identity in reverse. In other words the resonance between rights talk and communal talk creates the solidarity of the movement.

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