In this symposium the controversial issues of law and justice are focused, which can be a reflection of long and extensive research outcomes of the study in Sociology of Law. Particularly, (1) whether or not justice can be scientifically studied, (2) law and justice must be inconsistent, (3) justice are be precisely defined, are discussed.
If we call righteousness which the law has to pursue because the law is the law “legal justice,” this “legal justice” requires public authorities to obey existing legal rules. Results of some survey researches show, however, that the Japanese people tend to expect public authorities to realize particularistic “justice for here and now” rather than to obey existing legal rules. This contradiction between a requirement derived form “legal justice” and a popular expectation seems to put public authorities in doublebind situations. But the same contradiction can be interpreted as that which gives public authorities chance to acquire two sorts of power resources which they can use for the purpose of enhancing the possibility that their decisions are accepted by those who are disadvantaged by those decisions. Based on these understandings, “ordinances for the promotion of compliance” which are enacted by local governments and “nuclear safety agreements” between local governments and electric power companies are analyzed. Both of them show that local governments sometimes put high priority on the realization of popular expectations rather than obedience to legal rules.
The origin of justice and its evolutionary functions are theoretically reconstructed. The origin of social norms/law and their evolutionary functions are also theoretically reconstructed. The relationship between justice and social norms/law is critically analyzed. The selection pressure in human evolution of 2 million years of the Pleistocene gave our ancestors the evolutionary advantage of acquiring the notion of justice and social norms/law and of behaving, feeling, and evaluating accordingly. The kin selection, reciprocal altruism, and intergroup selection all worked for human to behave, feel, and evaluate like human in order to enhance his/her evolutionary fitness. Since the evolutionary process is stochastic and recursive, and since the population genetics is a statistical dynamics, the distributions of various conceptions of justice, social norms, and law on the human population do not and cannot converge even in equilibrium. In the case of law, the results of social choice theory and public choice theory suggest that legislative process introduces additional complexity to law. The evolutionary perspective sheds new lights on the relationship among law, social norms, and justice.
Theories of justice premise that we can articulate and formulate the universal, comprehensive, and public justice. ‘Justice’ as such has affinity with ‘law’ or ‘adjudication.’ In the modern society, nevertheless, autonomous law, structurally differentiated from the other functional systems, has fundamental gaps from justice, though still making, or believing, its integrity and identity based on justice. In some situations, ‘justice’ is even invoked to criticize and reject law. Sociology of law, that is originally a reflection on excessive doctrinarism and dogmatism in jurisprudence, may utilize its sensibility when discussing and dogmatizing justice.
Psychological justice research has mainly focused on the citizen, not judicial officers, and found that they evaluate and react to judicial events from the viewpoint of not only self-interests but also justice and fairness. Based on the empirical methodology, psychologists have addressed three basic issues of justice: By what cognitive processes do people shape a justice perception, what kinds of behavioral or psychological responses does the perception of justice or injustice motivate, and why are people concerned with justice, that is, what is the source of justice concerns? Whereas the citizen is regulated by the law and enjoys its service, they also support or criticize the law based on their social norms. Since justice is a part of the social norm, it can be argued that justice endorses and underlies the law. On the other hand, the social norm is formed through people’s social experiences, including culture and the developmental environment, which are determined by the law events, suggesting a cyclic relationship of justice and the law in which both influence each other. From this point of view, comments to presentations by three symposiasts were made.
Underlying the problem of “the conflict between law and justice” there is a presupposition that they should be consistent with each other, and that the foundational value for legal system is “justice.” This presupposition has been rooted in the culture of European legal tradition, and is currently inherited in the contemporary liberalism. The reason why the view that law and justice should be consistent and integrated is alive and appears attractive even today seems that it is strongly related with the idea that the legal system is, and should be, autonomous from other subsystems of society, such as politics and economy. The “justice” is supposed to be the ultimate value for the legal system, which is absolute and independent from any other values in society. To worship “justice” as the ultimate value seems to guarantee, for believers, the autonomy of legal system. Of course, this autonomy of legal system is simply a fiction. The three presentations in the symposium commonly showed a critical stance to this fictitious idea of autonomy of law. This is certainly understandable, because the standing point of sociology of law as an empirical science is entirely oppositional to the traditional self-identification of legal system as autonomous one. Nevertheless, it seems that taking a critical stance to the fictitious idea of autonomy of law does not necessarily mean that sociology of law should take an external view-point toward legal system. Indeed sociology is an empirical science. But it is still an enterprise within a society. Knowing that a society is composed of various fictitious ideas, sociology, including sociology of law, should still take an internal view to the society.
In this symposium whether or not Psychology is possible to approach to law and justice is focused. From among many fields of Psychology, Developmental Psychologist, Social Psychologist, Evolutionary Psychologist, and Law and Psychologist gather and discuss whether justice can be exist as objective and external material or subjective and internal material.
Many legal philosophers consider justice an essential aim of laws and try to study this concept in order to comprehend the essence of law. Typical examples of these efforts are liberalists’ theories of justice, which separate “justice” from “good” and regard the realization of the former in our societies as a main objective of the law. However, laws have an innate function and we can examine that function regardless of any evaluation of moral values such as justice or good. Laws exist in societies where human individuals live with others and have to work to maintain symbiosis. It is a fundamental aim of laws to fulfill the conditions of human symbiosis. We have to conduct scientific research concerning human nature and the structure of human society to find these conditions. We should not examine the aims of laws only by discussing values to the exclusion of the scientific process. Evolutionary psychology, which treats universal characteristics of the human mind and behavior, has an important role in this research. Based on the research of evolutionary psychology, we find “allocation of opportunities for getting resources among group members” as a general condition of human symbiosis. This is one basic aim of laws prior to moral values.
Evolutionary psychology is an approach to psychological science that explores the functions of human mind based on the Darwinian theory of evolution. From the Darwinian point of view, the existence of altruism is an enigma since such tendency reduces one’s own fitness while enhancing those of others. Any behavioral tendencies that lower one’s own fitness should be selected out from the population by the process of natural selection. Even so, there are many examples of altruistic behavior among human and non-human societies. There are two major theories that explain the evolution of altruistic behavior; theory of kin selection and theory of reciprocal altruism. I introduce the theories and empirical evidence that support them. At first glance, these lines of research may appear to argue about the psychological foundation of justice. However, it seems that the strength of “empirical evidence” are overestimated among non-specialists of empirical studies. I introduce the methodology of empirical approaches to psychology and explain their limitations. Specifically, I present that the relationship between statistical significance and sample sizes are prone to be looked over thus making fallible impression large effect sizes among the “audience” of empirical research. In addition, psychological science is currently facing the problem of failing replication or lack of replication of reported experiments. Given the power and limitation of evolutionary and empirical approaches to human mind and behavior, I discuss the feasibility of arguing psychological foundation of justice.
Elaboration of understanding the concept of “justice” by developmental psychologists was addressed by focusing on the importance of developmental perspectives in understanding human behavior. Mainstream developmental theory has changed from stage theories to domain theories. Currently, the development of justice is considered to be a multi-dimensional process. Similar to other moral concepts, people understand justice differently in different contexts. A concrete example of a study on “majority voting” and “freedom of speech” that was conducted in Japan is presented. Although this study was limited to “how the sense of justice is developed,” the ultimate task of research on moral development is to explore the question; “why the sense of justice developed.” It is suggested that this should be the goal of future research.
It is not easy for us to tell what fairness is with clear words. In this article, history of researches on social psychology of fairness, especially distributive fairness and procedural fairness, are reviewed to find clear notion of fairness and its functions. As a result, a clear answer is not found to tell what fairness is. However, several useful effects of perceived fairness are found to discuss policy of civil dispute resolution system. In this article, though it was demonstrated that perceived fairness has clear effect on human attitudes and actions and they are useful tool to design civil litigation system, still we are in a situation that we can feel fairness but cannot tell what it is. In the end of this article, the necessity of continuous research on this topic is emphasized.
What was distinctive about this mini-symposium was that two reports among four were made from an evolutionary psychology viewpoint (Kai Hiraishi and Atsushi Naito). Thus the commentator first summarized orthodox juristic and psychological views on law and justice, and then gave an account of the background and the significance of the evolutionary psychology viewpoint. The comments in view of this are as follows. i）Along the course of evolution of homo sapience, who administered punishment for betrayal, how were the free-rider problems dealt with, and how was the punishment for betrayal systematized? ii）How should evolutionary psychology interpret the times when primitive trials arose in magical or religious rituals? How is it related to procedural justice that is the essence of trials? iii） What is the relation between the system of punishment for betrayal and a sense of injustice that was derived from the social brain homo sapience developed? Was there the estrangement between these two?
In this article, I discussed the possibility of empirically approaching from a psychological perspective to the legal concept of “justice.” The discussion was mainly based on the review of recent developments in the area of social psychology as well as on the four papers presented in this mini-symposium. First, findings from social psychological studies that emphasize the distinction between distributive and procedural justice were discussed. Furthermore, recent research in diverse forms of justice such as retributive and restorative justice was reviewed. Next, I summarized the current state of the “morality boom” that can be found in recent psychological research. In particular, the gist of major theories such as Moral Foundation Theory, the intuitionist model of morality, and the Relational Model Theory was presented. I then critically evaluated the potential contribution as well as the limitations of the evolutionary perspective. Finally, on the basis of the contrast between normative and empirical theories (represented by the theories of law and psychology, respectively), I pointed out the possibility of mutual collaboration between these two fields. The significance of a meta-theoretical perspective was emphasized.
As Ulrich Beck illustrated, our contemporary society can be characterized as Risk Society. Especially, after 3.11 disaster and Fukushima nuclear accident, we felt more seriously the problem of geographically unequal distribution of the Risk. As the typical example of the Risk distribution problem, we will focus the local conflict about industrial waste disposal facility installation. In this paper, firstly I summarize the historical relationship between Law and Risk from French Legal History. Secondly, I examine the Risk Theory of Ulrich Beck and his legal thought. Finally, based on these preliminary works, I propose three main issues to which contemporary socio-legal scholars must engage.
Conventionally, “agreement” of the persons concerned has been pursued in environmental conflict, but it cannot be attained easily in the risk society. Requirement of agreement means granting an adversary a power of veto. It has some legal issues. Therefore, we cannot require agreement. According to the argument in social psychology, “agreement” is not pursued in risk communication but a “understanding”. In risk communication, “a meaningful response” based on interactive communication is performed, and an “understanding” of the persons concerned is urged as a result. On the other hand, in the arguments of “dismissal due to economic conditions” in labor law, “understanding” is not a subjective state but an objective. It means the state which a third party can evaluate against the intention of the person himself/herself about it. The research on not “agreement” as output but an “understanding” as a process is required in the dispute processing research in the risk society.
Can litigation make decision to avoid the risks associated with science and technology? It has been said that litigation is ill-suited to take appropriate precaution because (1) preventive litigation necessarily makes important policy and it intrudes into the function of the legislative and executive branches, and (2) judges cannot understand scientific-technological matters properly and they are not able to make good judgments. But, legislative and executive branches also have difficulty in dealing with those problems. Courts have a various kind of means to gather information and potential for a high degree of participation through no bureaucratic structure. Certainly, judges have difficulty in understanding scientific evidence. Scientists who have worked as expert witness criticize that judges lack basic knowledge about scientific uncertainty and adversary system distorts the points of evidence. But, we can make alternative way to improve the judicial process. it is possible that judges remove themselves from their traditional image of “sound science” and enhance their understanding of “scientific uncertainty” to discern among risk, uncertainty, ambiguity and ignorance. As a procedural model, this article propose “a model of public law remedies” that situate remedial stage as essence of litigation. The court’s role is to structure a deliberative process whereby the stakeholders including experts and scientists develop preventive decision and remedial solution. Judicial Process can be a model forum for social decision-making to avoid risks.
This essay considers the meaning of “rule of law” in the context of the historic series of reforms to Japan’s judicial system proposed by the Judicial System Reform Council (JSRC) in 2001. It contrasts the respect for “thick” rule of law displayed in the JSRC Report with the attack on thick rule of law embodied in revisions to Japan’s Constitution proposed by Japan’s dominant political party (the Liberal Democratic Party or “LDP”). When the JSRC considered its reform agenda, it did so with the knowledge that Japan’s democratic Constitution, which emphasizes respect for individual rights, had provided a stable foundation for law and politics for more than five decades. The JSRC proposals tend to strengthen the protection of individual rights and exercise of popular sovereignty that lie at the core of this Constitution. Some LDP proposals for constitutional revision would have the opposite effect, restricting individual rights and transferring greater authority to government officials. (The most recent comprehensive LDP program for such revisions are included in “Draft Reform if the Constitution” (kenpo kaisei soan) published in March 2012.) These proposals suggest that the understanding and belief in rule of law held by the drafters of the “Draft Reform” is dramatically different from that possessed by JSRC members and by advocates for a thick rule of law around the world.
This is a report of the RCSL (Research Committee on Sociology of Law, International Sociological Association)’s Jubilee Ceremonial Conference and recent activities. Part I is an introduction of the RCSL and ISA. Part II deals with the second ISA forum of sociology in Buenos Aires, Argentina, which was held in August, 2012. Part III is an observation of the RCSL Jubilee Ceremonial Conference, which took place in Warsaw, Poland in October, 2012. It touches on a paper titled “Public Sociology of Law in Japan?: Life and Works of Michitaka Kaino,” which was presented by the author inspired by the plenary session of the ISA forum in Buenos Aires featuring “public sociology.” Part IV invites readers to the 18th ISA Sociology World Congress, which is scheduled to be held in July of 2014 at Yokohama, Japan.