The Sociology of Law

Introduction

Atsushi Bushimata

2006 Volume 2006 Issue 65 Pages 1-7
Published: September 30, 2006
Released on J-STAGE: June 20, 2012

DOIhttps://doi.org/10.11387/jsl1951.2006.65_1

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A Note on Collective Sanctions

Takashi Iida

2006 Volume 2006 Issue 65 Pages 8-21,252
Published: September 30, 2006
Released on J-STAGE: June 20, 2012

DOIhttps://doi.org/10.11387/jsl1951.2006.65_8

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This article briefly discusses the social function of sanctions from the perspective of economics, as well as examining the merits and demerits of "collective sanctions", systems where punishments (or rewards) extend not only to a deviator but to other persons who belong to the deviator's group.
The major merit of collective sanctions lies in delegating the control of a group to people within the group, mobilizing informal sanctions, and stimulating the group to create new norms. The effect of a collective sanction, however, depends on the structure of the target group. Moreover, the possibility should be considered that the structure of a group might be transformed by collective sanctions.
In the real world most of sanctions have externalities, so there is continuum between sanctions that target a single individual and collective sanctions. Therefore, the analysis might hold for virtually all sanctions to a greater or lesser degree.

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Sanction and the Audience

The Creation of the Public Trial in Meiji Period

Hiroaki Matsunaga

2006 Volume 2006 Issue 65 Pages 22-33,252
Published: September 30, 2006
Released on J-STAGE: June 20, 2012

DOIhttps://doi.org/10.11387/jsl1951.2006.65_22

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Criminal sanction is composed of law enforcers, law violators and the audience. The study analyzes the process of the creation of the public trial in Meiji period and theorizes the structure of the criminal sanction audience. The process of the opening criminal trial is the process of differentiation in the structure of the audience (observers in court, creators of criminal news, and audiences of criminal news) and in its function (guaranteeing justice of the legal procedure, guaranteeing legitimacy of the judicial system, and mediating the two). The differentiated audience also functions to change itself to the victims in discourse. Therefore, the audience is not only an object of general prevention but also expected to guarantee the legitimacy of law.

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Recapturing 'Behavior'

An Ethnographic Analysis of Pala Soue Ritual in the Kurti Society, Papua New Guinea

Jun Baba

2006 Volume 2006 Issue 65 Pages 34-53,252
Published: September 30, 2006
Released on J-STAGE: June 20, 2012

DOIhttps://doi.org/10.11387/jsl1951.2006.65_34

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This paper aims to examine Pala Soue ritual in the Kurti society of Papua New Guinea from the viewpoint of sanction. The ritual, concomitant with bride-price payment, is a customary practice where the husband's family rewards his wife and her family for their good behaviors with money. I intend to show how this transactional event reproduces local personhood and normative order in a positive way. Since A. R. Radcliff-Brown classified social sanction as positive and negative, ethnographic analyses about positive sanction seem to have hardly ever been reported. This case study seems to be firmly significant in this term, even if Pala Soue ritual has an empirical phase beyond sanction dualism. The data for this paper is based on an anthropological research I conducted in the area.
The methodological focus is on the systematic relevance of punou, Pala Soue and the normative order in the Kurti society. At first, I elucidate the local concept of punou. It means that normative behavior is complexly defined by relationships; kinship, gender and social status. Most personal descriptions among the Kurti people reflect judgments on whether he/she could perform properly in response to expected behavioral patterns. Thus, learning punou is a presumption of personhood in this society.
Secondly, the structure and process of Pala Soue ritual is ethnographically described and analyzed, referring to genealogy and statistics. In this ritual, participants recapture punou that is done in interpersonal encounters, and make it respectively known to the public. Consequently I conclude that Pala Soue ritual is a practice of public display through which (as Bourdieu says) normative order is objectified, represented and reproduced. As for personhood, I consider this event as a salient moment of normative communication that transmits the normative message motivating the audience to learn and do punou huyen (lit. good behavior).
Finally, I will propose a new direction of sanction studies, referring to contemporary arguments about cultural identity and personhood where the customary way of behavior becomes an increasingly important subject.

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Giciaro: Mutual Expectations and Sanctions among the Igembe of Kenya

Shin'ichiro Ishida

2006 Volume 2006 Issue 65 Pages 54-66,253
Published: September 30, 2006
Released on J-STAGE: June 20, 2012

DOIhttps://doi.org/10.11387/jsl1951.2006.65_54

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In Igembe (a Meru-speaking people) communities of Kenya, there is an institutionalised bond-relationship between two exogamous clans, which is called giciaro. People related in giciaro share not only exogamous rules but also reciprocal obligations. They are not allowed to intermarry, and they are obliged to show mutual generosity in giving their counterparts whatever they demand. Any behaviour to the contrary is thought to engender certain misfortunes (negative sanction). Igembe people themselves clearly describe the social norms of the institution in those generalised terms.
When a certain person (A) intends to make a request to another person (B) for financial support, B's mwiciaro (a giciaro counterpart) may be sent to B as A's agent. This is because B cannot refuse his or her mwiciaro's plea. However, as is argued in this paper, it does not necessarily mean that B is forced to acquiesce to unreasonable demands.
Since a giciaro relationship is characterised by reciprocity and mutuality, it is impossible for one party to enjoy one-sided exploitation of the other. That is to say, any requests exchanged between giciaro partners must be, or are expected to be, even-handed; otherwise one or both parties may suffer a devastating loss in the course of a self-centred transaction.
From the author's observations thus far, it seems that the possibility of negative sanction is not the only source of a mwiciaro's power, even though it makes up a part of the institutionalised grounds of a mwiciaro's power. A giciaro relationship is built upon mutual expectations: since a mwiciaro's request is not deniable at all, extreme requests without reasonable grounds should not be made to the counterpart. It is such expectations that convince both parties to comply with the social norms of giciaro. In this paper, the above points are illustrated with a case analysis of fund-raising activities in a village.

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Transformation of Criminological Thought and Roles of Punishment

Hideyo Matsubara

2006 Volume 2006 Issue 65 Pages 67-81,254
Published: September 30, 2006
Released on J-STAGE: June 20, 2012

DOIhttps://doi.org/10.11387/jsl1951.2006.65_67

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This paper aims at bringing up a perspective to examine the relationship between policies and recognition of facts behind them. First, we will observe transformation of criminological thought and ways of dealing with crime, and confirm the correspondence, looking back to history of criminology (II). Then, we will explore what causes the transformation and how a certain policy is chosen (III). I will make the point through the work that ways of coping with crime and roles of punishment are influenced by our ways of thinking about crime and criminals rather than effectiveness of policies, and also that we should reconsider current policies for crime and how to use punishment in the historical context from this point of view.

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From Punishment to Restitution: For Support of Crime Victims

Yuko Hashimoto

2006 Volume 2006 Issue 65 Pages 82-95,254
Published: September 30, 2006
Released on J-STAGE: June 20, 2012

DOIhttps://doi.org/10.11387/jsl1951.2006.65_82

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The purpose of this article is to examine the libertarian theory on punishment, which claims that punishment should be reduced to restitution.
What is the problem with punishment? Libertarians claim that the most serious problem is that it is unjust to crime victims. Under the punishment system, crime victims cannot be paid restitution. Further, the cost of administrating prisons is paid from money collected through tax, which is borne by citizens, including crime victims. This means that a double burden is placed on crime victims.
What is the conception of justice that law must achieve? From the libertarian viewpoint, the most important issue is corrective justice. Corrective justice requires that restitution be provided to crime victims. To that end, restitution, not punishment, should be the main negative sanction.
According to those who hold the view that restitution is an alternative to punishment, criminal liability should be reduced to civil liability. Such a view attempts to overcome the traditional thought that civil law must be clearly distinguished from criminal law, which is the main reason why crime victims have been overlooked in the Japanese criminal justice system. Moreover, it can offer a foundation for crime victims to have the right to seek restitution. Therefore, this view is highly significant in contemporary Japan because it can provide a perspective to criticize the present situation, in which justice is not delivered to crime victims.

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A Comparative Study of the Attorney Discipline Systems in Japan and Washington State

Kyoko Ishida

2006 Volume 2006 Issue 65 Pages 96-115,255
Published: September 30, 2006
Released on J-STAGE: June 20, 2012

DOIhttps://doi.org/10.11387/jsl1951.2006.65_96

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This paper is a comparative discussion of the attorney disciplinary systems in Washington State and Japan. By comparing the two disciplinary systems, this paper addresses one hypothesis about the dynamics of an attorney disciplinary system in a society.
A review of both disciplinary systems shows that the two systems have several points in common. However, the two systems are significantly different in terms of their relationship to the public. I propose two models derived from the distinctive characters of two disciplinary systems: a "Public Collaboration Model" and a "Public Persuasion Model." The Public Collaboration Model uses citizens to operate the attorney disciplinary system with attorneys, whereas the Public Persuasion Model uses only attorneys to do so. An attorney disciplinary system is not a fixed system in a society. It dynamically changes according to the number of attorneys and public awareness from Public Persuasion Model to Public Collaboration Model. The attorney disciplinary system in Washington State is close to Public Collaboration Model whereas the disciplinary system in Japan today is rather close to Public Persuasion Model. However, it is doubtful that Japan will maintain the current disciplinary system in the future because there are sufficient factors which may shift current system toward the Public Collaboration Model.
Regardless of the jurisdiction, an attorney discipline system is not just a matter that ends with the relationship between a respondent attorney and a client, but involves the whole society where a respondent attorney practices law. The structure of the disciplinary system reflects not only the view of attorneys in the society but also the attitude of the general public.

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Contempt and Child Contact

A New Enforcement System of Child Contact in Australian Family Law

Norihide Ishido

2006 Volume 2006 Issue 65 Pages 116-128,255
Published: September 30, 2006
Released on J-STAGE: June 20, 2012

DOIhttps://doi.org/10.11387/jsl1951.2006.65_116

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In Australia there is a growing tendency for enforcement of contact orders. Then, the Family Law Amendment Act 2000 commenced, under which three tiered compliance scheme is divised; stage 1 as preventative stage, stage 2 as remedial, and stage 3 as punitive. This implies that the family law system enter into the 'unknown' post-divorce world.
The new conception of continuous relationship press family law 'system' for unanticipated transformations. First, it suggests a limitation with of one-off judgement, since there occur numerous changes in circumstances surrounding divorced families like remarriage, reemployment, and relocation and so on. Perhaps, more amendable and flexible mechanism rather than strict is preferable. Importantly, contempt or enforcement system has been depended on 'judge-made orders', but in fact the most orders are made from parental agreements. Regarding this point, the legitimacy of such orders shall be questioned, because such practice overrides the tradition that the Court of Chancery had exercised. Contact becomes more important methods to bond divorced family ties than before. However, enforcing contact is another level. Punishing violators of court orders is not necessarily to resolve complex child contact matters. The most important is to repair family relationship and to protect children or victimised parents form abusive parents.

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Contrasting Regulatory Styles Revisited

Do Differences in Institutional Dynamics of Environmental Regulations Still Persist between Japan and the United States?

Kazumasu Aoki

2006 Volume 2006 Issue 65 Pages 129-147,256
Published: September 30, 2006
Released on J-STAGE: June 20, 2012

DOIhttps://doi.org/10.11387/jsl1951.2006.65_129

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During the past decades or so, researchers in comparative politics, socio-legal studies and related social sciences have implemented a series of empirical analyses regarding institutional dynamics of environmental regulations. The comparative analyses, in particular, have revealed sharply divergent regulatory styles between Japan and the United States. In a nutshell, the American regulatory style is characterized by sanction-oriented enforcement, highly legalistic, minutely rule-defined implementation, and adversarial relationship between government and business. In contrast, the Japanese style is prone to feature cooperative policy making, bureaucratic informality known for reliance on administrative guidance, and selfrestrained judicial review toward regulatory decision-makings. Since the 1990's, however, reformers in Japan have claimed for legalization of policy processes, ex post regulatory implementation, and minimization of bureaucratic discretion. And in the United States, legalism and formalism in environmental regulations have been severely criticized for causing high compliance costs and organizational inefficiency. Thus, given the fact that both countries have experienced institutional changes, this paper compares current data drawn from questionnaire surveys on government enforcement and corporate compliance to see if the divergent dynamics still persist between Japanese and American environmental regulations.

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Koban and Its Police Culture

Naoko Yoshida

2006 Volume 2006 Issue 65 Pages 148-163,256
Published: September 30, 2006
Released on J-STAGE: June 20, 2012

DOIhttps://doi.org/10.11387/jsl1951.2006.65_148

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The Japanese Koban system has long enjoyed the recognition as the key to Japanese low crime rates. By analyzing the field research conducted in 2002-2003 in one Koban in Tokyo, this paper discusses what factors shape its practice and reveals its struggle in Community Policing Era, in the light of Cop Culture theory.

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Recognizing Legal Pluralism

A Dispute over a Sea Area in Yap State, Federated States of Micronesia

Masaru Noritake

2006 Volume 2006 Issue 65 Pages 164-191,257
Published: September 30, 2006
Released on J-STAGE: June 20, 2012

DOIhttps://doi.org/10.11387/jsl1951.2006.65_164

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This article intends to reveal how Yapese people recognize legal pluralism in Yap State, Federated States of Micronesia. Legal pluralism is defined as the situation in which two or more legal systems coexist in the same state or society. Legal pluralists insisted that daily normative orders not attached to the state are also 'legal' and should be called 'non-state law' or 'customary law'. They criticized legal centralism only focusing on state law and emphasized that researchers should focus not only on legal discourses in the legal arena but also on people's narratives and practices in their daily lives when examining legal situations and dynamics in colonial and postcolonial societies. However, recent studies of colonial/postcolonial law seem to return to legal centralistic view and overlook the people's daily narratives and practices. In this article I spell out the process of a dispute over a sea area in Yap and reveal the diversity of litigants' recognitions of the relation between the state law and yalen, or the network of social relationships which forms, and are formed by, people's everyday practices. This diversity of the recognitions indicates the multiplicity and plurality of the people's realities of legal pluralism in postcolonial Yap.

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A Theory of Social Order as Public Philosophy in Rawls's Political Justice

Ryohei Itabashi

2006 Volume 2006 Issue 65 Pages 192-216,257
Published: September 30, 2006
Released on J-STAGE: June 20, 2012

DOIhttps://doi.org/10.11387/jsl1951.2006.65_192

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The purpose of this paper is to demonstrate how political justice in Rawls answers the essential sociological question of how social political order is formed and how political space where free and equal citizens agree on the political conception is constructed given a fact of pluralism of reasonable moral comprehensive values in democratic constitutional regime.
Firstly I argue about the relation of justice to good and emphasize that political space contains reasonable morality although it transcends the comprehensive values or doctrines.
Secondly I indicate that the political-moral conception in Rawls is not the conception which aims at justifying the disorder or complete convergence of moral values but the reasonable social order conception which draws the comprehensive values or doctrines into common space and at the same time guarantees the liberties of the comprehensive values which depart from common shared political space.
Thirdly I analyze how the political judgments or convictions are transformed into the political conception through the communication in citizens, theorist and hypothetical representatives.

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Child Abuse and Parent Support

Learning from the Arguments and the Practices in the United States

Ayako Harada

2006 Volume 2006 Issue 65 Pages 217-241,258
Published: September 30, 2006
Released on J-STAGE: June 20, 2012

DOIhttps://doi.org/10.11387/jsl1951.2006.65_217

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Every child protection system has two primary goals: to ensure the safety of children and to preserve the parent-child relationship. However, in the United States especially, the juxtapositioning of these two goals are thought to bring about a serious dilemma. According to the liberal thought, which places much value on the autonomy and self-reliance, state intervention to the family must be kept at a minimum. It therefore follows that parents do not get any support unless they are found to be abusive to their children. Under this ideology, parents are blamed in cases of child abuse because it is thought that the parents hold full responsibility for raising their own children. Parental rights are terminated to keep the child safe if the parent (s) cannot improve their parental abilities after a temporary period of assistance. Some possibilities for overcoming the problems of these contrasting alternatives can be found in the arguments of E. F. Kittay and M. Minow. They reconstruct liberal theory using the concepts of "dependency" and "relationship" and argue that society should acknowledge the social value of the parent-child relationship and support parents. If generous support for parents can reduce the parental stress, it will help prevent abuse from the outset, or at least prevent its recurrence. The latest practices on this theory can be appreciated to have broadened the possibility of concurrently realizing the two original goals: the safety of children and the preservation of the parent-child relationship.

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Ji Weidong, The Composition of Chinese Judicial System

Osamu Takamizawa

2006 Volume 2006 Issue 65 Pages 242-246
Published: September 30, 2006
Released on J-STAGE: June 20, 2012

DOIhttps://doi.org/10.11387/jsl1951.2006.65_242

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Deborah L. Rhode, Access to Justice

Kayo Minamino

2006 Volume 2006 Issue 65 Pages 247-251
Published: September 30, 2006
Released on J-STAGE: June 20, 2012

DOIhttps://doi.org/10.11387/jsl1951.2006.65_247

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