The Sociology of Law
Online ISSN : 2424-1423
Print ISSN : 0437-6161
ISSN-L : 0437-6161
Volume 2012 , Issue 77
Minority and Law
Showing 1-20 articles out of 20 articles from the selected issue
Special Articles: Minority and Law
  • Chihara Watanabe
    2012 Volume 2012 Issue 77 Pages 1-5
    Published: 2012
    Released: April 19, 2021
    JOURNALS OPEN ACCESS
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  • Hiromichi Endo
    2012 Volume 2012 Issue 77 Pages 6-13
    Published: 2012
    Released: April 19, 2021
    JOURNALS OPEN ACCESS
    Paul Tillich asked us “What gives us the right to hope after all our failures ?” The key to solve this problem, if any, lies in our readiness to admit our own social injustice toward each other, especially to homeless people. The homelessness has been spreading in whole area, that is, both younger people and older people have been losing their tenured positions in society in these years. Participating in the struggle against despair for the right to hope, lawyers shall be sensitive in the exercise of their conscience, which has no easy right answer.
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  • On Faith-based Medical Neglect and Religious Minority
    Takehiko Yoshioka
    2012 Volume 2012 Issue 77 Pages 14-34
    Published: 2012
    Released: April 19, 2021
    JOURNALS OPEN ACCESS
    This paper focuses on faith−based medical neglect in order to analyze the problem, how should social majority, which manages legal system, respond to disobedience of religious minorities. As an object of case−study I take up an incident, in which a seven−month−old baby boy died of serious atopic dermatitis. In this case parents of the dead baby were arrested and prosecuted for Abandonment Causing Death by Person Responsible for Protection. Police and public prosecutor claimed, “These parents neglected to take their baby to the hospital and gave him no appropriate medical cure.” However parents did “cure” by means of “Therapeutic Touch” (placing their hands near a patient), based upon their religious belief. Their behavior was regarded as “medical neglect” by reason that they did not cure their baby based on Modern Western Medicine. In this paper I would show relativity and limitation of Modern Western Medicine (that Modern Western Medicine is one of various curing methods, therefore we could never say that Modern Western Medicine is the one and only appropriate medical cure) with the help of studies on “Complementary and Alternative Medicine” (CAM), History and Philosophy of Science, Medical Anthropology. In the end this paper comes to conclusion (1) that curing method based on Modern Western Medicine cannot be superior to other methods, for example, “Therapeutic Touch” on religious doctrine (both of them are in principle placed on an equal plane), (2) that “We” namely social majority should manage legal system and state power in moderate and reflective posture. In the discussion on moderation and reflectiveness it made reference to studies on “crime of conscience” in German legal philosophy, especially to Gustav Radbruch’s argument about “Überzeugungstäter.” Radbruch suggested that person (“Überzeugungstäter”), which commits to offense for political / religious reasons, should receive imprisonment without hard labor in order to save her / his honor.
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  • A Case Study of the San Francisco Bay Area
    Takeshi Akiba
    2012 Volume 2012 Issue 77 Pages 35-64
    Published: 2012
    Released: April 19, 2021
    JOURNALS OPEN ACCESS
    The article examines the constitutional debate surrounding racial minorities in the United States, especially segregation and affirmative action, in light of social realities as evidenced in the San Francisco Bay area (especially Berkeley, Oakland, and Piedmont). It examines census data regarding socio-economic status, as well as standardized test scores, and finds a consistent pattern of racial segregation and racial disparity in the area. The article then looks at systematic factors that are not evidently related to race, but still has an impact on race. These include 1) the system of local government in the United States, which enable local residents to establish city boundaries and then to create zoning regulations within those boundaries, as well as 2) the financing mechanism of local governments that tends to result in disparities in school funding. These factors, combined with the U.S. Supreme Court’s reluctance to expand the reach of its integration decisions to de facto segregation, or to remedies beyond district borders, have made it difficult for integration to be implemented on the ground. In the end, the dominant tendency to distinguish official discrimination and segregation with disparity as a result of “individual choices”; and an aversion to recognizing persons on the basis of group attributes such as race or gender, delineates the limits of the power of law to improve the status of minority groups in the case of the United States. This could also be observed in the case of the debate over affirmative action, where the initial purpose of improving the status of minorities (as a group) in the educational setting have been replaced with the rhetoric of equal opportunity among individuals or benefits to the larger society (not the minority groups). Whether the law can go beyond the confines of narrowly delineated cause-and-effect and reach into the confluence of structural and institutional factors that result in disparity may be the key to a jurisprudence of minority rights.
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  • In the Cases of School Corporal Punishment
    Ken-ichi Baba
    2012 Volume 2012 Issue 77 Pages 65-87
    Published: 2012
    Released: April 19, 2021
    JOURNALS OPEN ACCESS
    This paper examines some problematic aspects of actual dispute resolution processes concerning school corporal punishment (SCP) in Japan. The data used are administrative papers called “accident report” which school principals and town/city educational authorities make and are submitted to the prefectural educational authority, which has administrative disciplinary power. The focal point is on how SCP cases are treated afterward, rather than how SCPs emerge, the former being more socio-legally adequate aspect, whereas the latter concerning more educational matter. Throughout the processes, strong tendency to alienate minors, albeit their being direct party concerned, is observed. At the same time, however, minors themselves sometimes act to redeem their autonomy and centrality.
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  • Shuhei Ninomiya
    2012 Volume 2012 Issue 77 Pages 88-106
    Published: 2012
    Released: April 19, 2021
    JOURNALS OPEN ACCESS
    In the United States and European countries, the sexual minority’s rights and their communal life have been guaranteed. For example, the samesex marriage and registered partnership have been introduced and the law for altering the registered sex was enacted in recent years. Compared to those countries, the standard model of heterosexual marriage is still quite strong and the rights of sexual minority has been oppressed because LGBTI is regarded as a deviation of that model in Japan. The Act on Special Cases in Handling Gender for People with GID means to incorporate GID people into heterosexual marriage system by forcing those people to alter their registered sex. The act is not sufficient from the perspective of sexual autonomy. But, as women become economically independent, the the image of the family has been diversified and the consciousness of gender role has been changing. Officially, the Basic Plan for Gender Equality was formulated. These changes imply that the traditional standard model of family has been lost. The author suggests that viewing the issues of sexual minority’s rights as issues of changing family will make it possible that the sexual minority can ally with majority. Law has power both to protect the rights of minority against discrimination or oppression and to approve their life style. So, the author proposes the formulation of basic law for sexual minority’s rights and registered partnership.
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  • Integrating Gender into Judicial Education in U.S., Canada, and Australia as a Part of Assisting System for Judges with Fair Administration of Justice
    Kayo Minamino
    2012 Volume 2012 Issue 77 Pages 107-133
    Published: 2012
    Released: April 19, 2021
    JOURNALS OPEN ACCESS
    This paper tries to explore how we can cope with Japanese Judiciary, for the fair administration of justice, to learn from the experiences of U.S., Canada, and Australia in perceiving, sharing awareness of, and trying to eliminate gender bias in the courts. First it goes through the efforts of Japanese Federation of Bar Associations to improve the gender bias in the courts. Second it takes up the NGO, first to develop programs for judicial education on gender, established by NOWLDEF, NJEP’s achievement in cooperation with the courts, to find and eliminate gender bias in the courts and legal profession in U.S. Then it moves onto Canadian movement to institutionalize judicial education concerning gender for the judges, which were led by feminist lawyers, scholars, and judges. Canada’s NJI and its educational programs for fair administration of justice known as “social context” of is now one of the leading judicial education models. Lastly, it looks to Australian judicial education and bench book as assisting system for the judges with gender fairness in administering justice. Referring to the Australian bench book on “the Equality before the Law: section7 Women,” it reviews gender bias in a recent Japanese employment discrimination case. In conclusion, it points out the conditions shared in three countries to consider viability in the Japanese context.
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Articles
  • A Case of a Gated Community in Japan
    Machiko Furuyama
    2012 Volume 2012 Issue 77 Pages 135-166
    Published: 2012
    Released: April 19, 2021
    JOURNALS OPEN ACCESS
    The main subject of this paper is the community governance in a Japanese gated community. Gated community is a residential area which has a gate and walls around the community, and goes on increasing in the United States since the 1980s. Many gated communities are CID (common interest development) that is governed by HOA (homeowners association) with use of CC&Rs (conditions, covenants, and restrictions). Recently there is the emergence of several gated communities in Japan. I have done the research on such gated communities about two years. In this paper, I picked up one of them where is located in West Japan, and it is the existing gated community which became American style CID through the resident movement. I submit the process of this movement and CID governance in detail on the basis of my field work. In this community the corporate HOA creates many community rules and manages road network, waterworks facilities and amenity facilities, and collects assessments and offers “public” services, for example water supply, garbage collection etc.. Such community governance is analyzed by the theory of commons, the theory of governance and the theory of social capitals, so it is presented that people get around “the tragedy of the commons” not in terms of “the common” but of “the private.” I account for additionally that the rules in the thin human relationship community play a role of bond which solidifies the community instead of bonding social capitals.
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  • From the Viewpoint of the “Position” of a Lay Judge’s Turn
    Tomone Komiya
    2012 Volume 2012 Issue 77 Pages 167-196
    Published: 2012
    Released: April 19, 2021
    JOURNALS OPEN ACCESS
    In this paper, we explore some interactional environments in which lay judges give their opinion in deliberation. It has been said that there is an extremely asymmetric relationship between judges and lay judges in that the former possess professional knowledge about law while the latter do not. Some studies conclude that such asymmetries must be removed from interaction in deliberation; otherwise, judges have interactional hegemony and lay judges are less able to freely give their opinion. In contrast, we analyze data from mock trials and propose some different conclusions. From the viewpoint of the “position” of a lay judge’s turn in the turn-taking system, we can distinguish four possibilities for how lay judges take their turn: P1, self-selection after a judge’s turn; P2, other-selection after a judge’s turn; P3, self-selection after a lay judge’s turn; P4, other-selection after a lay judge’s turn. We examine each possibility and suggest that P2 has some advantages in terms of lay judges giving their opinion, whereas it has been criticized as having a “judge hegemony” character of interaction. First, P2 is the possibility in which lay judges are given the legitimate and exclusive right to give their opinion. Second, in P2, lay judges can use their turn for doing something other than answering a judge’s question. Third, judges can treat lay judges as “professionals” by using specific membership categorization devices in their questioning.
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  • Motivated by the “Great East Japan Earthquake”
    Hironao Kaneko
    2012 Volume 2012 Issue 77 Pages 197-228
    Published: 2012
    Released: April 19, 2021
    JOURNALS OPEN ACCESS
    The Dispute resolution system, including the court system, is designed to work under normal conditions. The purposes of this article are 1) to examine whether it is possible for people to consider self-help in cases of emergency during the great disaster in a situation where people could not obtain access to the dispute resolution system, and 2) to understand the role of the law in resolving disputes that had changed in the course of time after the disaster, such as those disputes that occurred three months after the earthquake and those disputes that changed in nature after six months, by referring to the statistical analysis of the legal consultation for the victims of the Great East Japan Earthquake, arranged by the Japanese Federation of Bar Associations. I undertook additional research by interviewing the attorneys in charge of the Earthquake ADR, led by the Sendai Bar Association, and took a field survey of the places where disputes had occurred in Miyagi prefecture. As great disasters such as the Great East Japan Earthquake, we should consider that it takes a longer time to return to normal conditions than we had imagined. The dispute resolution system, especially the court system, should respond to the situation flexibly. Though self-help has been strictly restricted in Japanese law, we may consider relaxing the restrictions on self-help to protect the rights of victims of great disasters.
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Sociology of Law in the World
  • Masayuki Murayama
    2012 Volume 2012 Issue 77 Pages 229-233
    Published: 2012
    Released: April 19, 2021
    JOURNALS OPEN ACCESS
    2012 International Conference on Law and Society was held in Honolulu from June 5th to 8th 2012. This was the fifth joint meeting of Law and Society Association and ISA Research Committee on Sociology of Law. Japanese Association of Sociology of Law, the Socio−Legal Studies Association of UK and Canadian Law and Society Association co-sponsored the joint meeting and attracted more than 2,300 participants from 64 countries. The conference consisted of one plenary session on “Socio-Legal Conversations across a Sea of Islands” and more than 500 sessions: eight featured sessions, individual sessions organized by International Research Collaboratives (IRC), Collaborative Research Networks (CRN) and Working Groups (WG) and independent sessions. Valerie Hans successfully obtained. National Science Foundation grant to invite scholars from low-income and middle-income countries. IRC Committee gave travel grant to more than 70 scholars for IRCs to organize more than 60 sessions. The scholars came from countries of Middle and South America, Asia, Africa as well as East Europe. The IRC scheme helped the Honolulu conference to become a truly international meeting. The author organized a featured session and four related sessions on law and disasters. An international group of researchers was organized after the East Japan Disaster in 2011. Activities of the group were funded by Japan Foundation Global Program, UC Berkeley Law School Sho Sato Program and Meiji University Disaster Project. We had the first meeting in Berkeley in October 2011, the second meeting in Tokyo in March 2012, and the sessions in Honolulu were our last opportunities to present papers. Topics we discussed were Recovery from “Natural Disasters,” How to Prevent or Mitigate Impacts of “Natural Disasters,” Safety Regulation of Nuclear Plants and Compensation for Nuclear Damages. The featured session on “Law and Disasters in Comparative Perspective: What Can We Learn from Experiences in Japan, the U.S., Chile, Indonesia and Thailand?” summarized issues discussed in the four sessions. The author joined a featured session on Changing Methodologies as a presenter. All the presenters used both qualitative and quantitative methods for their research. We discussed why we changed methods and what merits and demerits each method had. The author organized four sessions of CRN10 on Civil Justice and Disputing Behavior and chaired one of them on findings of the Taiwan survey in 2011. The survey was conducted with a view to comparing with findings of Civil Justice Research Project conducted in Japan.
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  • The JASL/CRN33 Featured Session “Classic Japanese Theories of Sociology of Law: Their Values in the Age of Globalization”
    Kota Fukui
    2012 Volume 2012 Issue 77 Pages 234-240
    Published: 2012
    Released: April 19, 2021
    JOURNALS OPEN ACCESS
    This article is an introduction to the discussions in the panel sessions in 2012 International Law and Society Conference in Honolulu. Its main focus was on the discussion in the JASL/CRN33 Featured Session 3210, “Classic Japanese Theories of Sociology of Law: Their Values in the Age of Globalization.” The aim of this session was to revive the discussion of classical Japanese theories of sociology of law in the context of current globalized society, in order to get instructions for the general theory of sociology of law. The classical Japanese theories of sociology of law give us good suggestions from the viewpoint of the importer of the legal transplantation, who is not passive but active. It is an important instruction to the general theory of sociology of law in the globalized society. There were a lot of panel sessions which discussed the local socio legal issues from the view points of general theory of sociology of law. This article also introduces the discussions in such panel sessions.
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  • Focusing on Research on Criminal Law
    Masahiko Saeki
    2012 Volume 2012 Issue 77 Pages 241-246
    Published: 2012
    Released: April 19, 2021
    JOURNALS OPEN ACCESS
    I had an opportunity to attend the “International Conference on Law and Society” which was held from June 5th to June 8th in Honolulu, Hawaii, the United States of America. I wrote about my impressions of attending that conference, focusing on research on criminal law. First, I described the summary of the session I organized, in which I gave a presentation. Also, I wrote about issues which a discussion participant of the session pointed out. Next, I gave details about that conference with a focus on the presentations which I heard and found interesting. However, that conference was so big that I could not attend every session. In addition, I was unable to describe all sessions which I attended due to word limit constraints. Therefore, I focused on two sessions. One session was about the death penalty in the United States of America. The presentations of this session seemed to focus on the process by which the states use and legitimize the death penalty system. The other session was about the jury system in the United States of America. I focused on the presentations about citizens’ attitude toward jury services, in particular, their willingness to heed the jury summons. I wrote about the presentations of these two sessions, and added a few comments on those presentations.
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  • Hitomi Takemura
    2012 Volume 2012 Issue 77 Pages 247-250
    Published: 2012
    Released: April 19, 2021
    JOURNALS OPEN ACCESS
    This paper describes the 2012 International Conference on Law and Society, held from 5th till 8th June in Honolulu, Hawaii, the USA. The author made a short presentation on the legitimacy of the International Criminal Court at a panel session named ’Why Here, Why Now? Legalities, Practicalities, and Politics of Forum Selection in International Law’. The three panelists engaged in active debates concerning Somali pirates and the International Criminal Court respectively. The author was inspired by a lively discussion of the panel and the questions from the floor. This paper gives brief accounts of the panel sessions of the right to health and of transnational legal order which the author sat in on and took place on the first day of the conference. The ‘Roundtable−−From Nuremberg and Tokyo to ICC: Post-WWII International Criminal Proceedings and Their Legacy Today’ was also mentioned in this paper. The roundtable-table session consisted of Siegfried Ramler, an interpreter at the Nuremberg tribunal, Professor Philipp Osten and Professor Yuma Totani. While the roundtable-talk was mainly about the Nuremberg tribunal, it suggested some lessons for the future. This conference was very informative and filled with very interesting panels and roundtables.
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  • Aya Yamaguchi
    2012 Volume 2012 Issue 77 Pages 251-257
    Published: 2012
    Released: April 19, 2021
    JOURNALS OPEN ACCESS
    This article reports the 2012 international conference on Law and Society. The author participated in the conference thanks to the Fellowship for the 2012 International Conference on Law and Society participants from the Japanese Association of Sociology of Law. The author made a presentation about Japanese law school students’ perceptions regarding dispute resolution at Dispute Resolution session. At the session, four others presented their work: financial ADR center in Hong Kong, Cultural Adaptability of ADR, the difference between dispute resolution and dispute disposal, and health care dispute in Canada. The chair person set a high valuation on the session both in terms of the quality of presentations and a variety of topics they covered. The author also participated in sessions such as legal access, legal professionals, legal consciousness in China, and legal consciousness and social exclusion. The conference provided 11 workshops for graduate students such as “Publication and Doing Sociolegal Research” and “Entering the Field,” in which the author participated. At the workshop, participants including professors and students discussed topics such as job hunting, getting grants, and motivation for research. In all, the international conference in Honolulu was very well organized, comprehensive, and accommodating various needs of researchers including those of young scholars.
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