法社会学
Online ISSN : 2424-1423
Print ISSN : 0437-6161
ISSN-L : 0437-6161
最新号
ジェンダーと法の理論
選択された号の論文の30件中1~30を表示しています
全体シンポジウム 「ジェンダーと法の理論」
  • 南野 佳代
    2016 年 2016 巻 82 号 p. 1-6
    発行日: 2016年
    公開日: 2021/05/05
    ジャーナル オープンアクセス
    This article reviews the situations of women’s rights and unrealized gender equality in the Japanese society referring to the World Economic Forum’s Global Gender Gap Report and Japanese Government’s whitepaper on the Gender Equality, in order to reveal the underlying issues of gender gap and agenda to be addressed in the three symposia of the 2015 Conference.
  • なぜ,ジェンダー平等の問題が軽く扱われるのか,日本におけるジェンダー平等がなぜ進まないのか
    角田 由紀子
    2016 年 2016 巻 82 号 p. 7-21
    発行日: 2016年
    公開日: 2021/05/05
    ジャーナル オープンアクセス
    In Japan, dominance theory has not been accepted as the leading theory for promoting gender equality presumably because the main player responsible for promoting gender equality has been the Japan Federation of Bar Associations (JFBA). Female members are only 18% of those of the JFBA even in 2015, and therefore male members have had strong power over the decision making within the JFBA. Even decisions related to gender issues have been dependent upon the agreement of male members. The leading theory has necessarily been that of the Convention on the Elimination of all Forms of Discrimination against Women. While dominance theory does have had some influence on legal practice related to violence against women, there has been no possibility that dominance theory became the leading theory for promoting gender equality.
  • ジェンダー平等と暴力の観点から
    岡野 八代
    2016 年 2016 巻 82 号 p. 22-39
    発行日: 2016年
    公開日: 2021/05/05
    ジャーナル オープンアクセス
    The purpose of this paper is to explore where the potentiality of feminist legal theory exists by regarding the ethics of care as a relational approach to social and human affairs. The first section rereads C. Gilligan’s masterpiece, In a Different Voice and shows how Gilligan criticizes radically the male-oriented perspectives of social reality. The second section focuses on J. Nedelsky’s Law’s Relations where Nedelsky argues how law and rights structure social conceptions as well as social institutions and relations. Her relational approach to law and rights is based on her critique of “private property model” of rights. “Private property model,” that is, the typical model of liberal understanding of rights cannot properly respond to violence against women. How should individual cases of violence be considered as a moment to transform our society by using a relational approach to law? The paper concludes to argue that this question shows us the theoretical potentiality of a relational approach.
  • 船越 資晶
    2016 年 2016 巻 82 号 p. 40-57
    発行日: 2016年
    公開日: 2021/05/05
    ジャーナル オープンアクセス
    The aim of this article is to give preliminary consideration to whether or not Critical Legal Studies, in particular Duncan Kennedy’s version thereof, can contribute to feminist/gender jurisprudence. Section 1 examines feminist legal theorist Joanne Conaghan’s critique of Kennedy, confirming that, from her perspective, Critical Legal Studies is regarded as lacking in normative ideals, and is consequently unable to transform law and society. In contrast, Section 2 looks at the theory of feminist legal theorist Frances Olsen, showing for example that her critique of public/private distinction is based on Kennedy’s “archeology of legal thought,” and claiming that Critical Legal Studies, as a methodology, has already made a significant contribution to feminist/gender jurisprudence. Section 3 goes on to examine Kennedy’s theory on “sexy dressing,” noting that it provides a paradigmatic example of policy analysis in gender-related areas and that this mode of legal thinking uses the normative ideal of autonomy (self-creation) to justify the conclusion. In response to this, Section 4 considers Kennedy’s “workplace politics,” confirming that this theory suggests that we should accumulate pragmatic efforts to transform hierarchy within our own workplaces, and arguing that this suggests to feminist/gender jurisprudence that law should be criticized from within, which corresponds to the postmodern condition of law.
  • 長谷川 晃
    2016 年 2016 巻 82 号 p. 58-68
    発行日: 2016年
    公開日: 2021/05/05
    ジャーナル オープンアクセス
    In my comments for the general symposium, I try to make significant inputs for the theoretical problems of gender equality in law, especially from the viewpoint of legal philosophy that is relevantly different from the perspective of the sociology of law. Important theme thereby is the potential and scope of the theories of gender law and gender equality that support various activities in entire society for gender mainstreaming, as the points of discussion on the problem above is considered to be the theoretical reflections of the nature of societal basis and theorizing conditions for the theories of gender law and gender equality. Keeping this outlook in mind, my comments refer to some issues that are common to each lecture in the symposium, such as the significance and future of the orientation toward equality, current transformations of the mode of legal communication and the limits of legal consciousness perspective, structural problems in today’s legal education including its social dysfunctions, and the place of the basic studies of law such as sociology of law and legal philosophy in changing society. In so doing, I try to reflect and evaluate the theoretical difficulties of gender law and gender equality and the changing aspects of gender problems today.
企画関連ミニシンポジウム1 「平等のジェンダー法理論」
  • 加藤 秀一
    2016 年 2016 巻 82 号 p. 69-80
    発行日: 2016年
    公開日: 2021/05/05
    ジャーナル オープンアクセス
    Gender equality nowadays is (re)defined as equality not so much between men and women as equality between individuals, whose gender identities are various and often complicated. Although such a definition may show the progress in gender studies, what is important is whether or not it is useful as a tool to uncover and criticize inequalities in the real world. In this regard, it seems more and more obvious that the concept has been fraught with considerable difficulties. This paper illustrates some aspects concerning such difficulties and tries to suggest how to overcome them by means of reexamining the concepts of both “gender” and “equality.” First we propose a somewhat newly modified concept of gender, instead of traditional one based on dichotomy such as “biologically determined sex vs. socially constructed gender,” as social norms with respect to which we perform everyday practices of classifying and dividing people into just two groups. As for equality, from the perspective with regard to social norms that are present in our societies, it is necessary to pay much attention to the paradox such that to promote legal and institutional equality sometimes results with the reinforcement of stereotypical notions of masculinity and femininity under the condition that some women themselves desire the gendered norms. There is no sure remedy against such practical dilemma, but at least we can suggest a possible prescription for it: that is, to put greater emphasis on human rights that are provided in Article 13 of the Constitution of Japan than principles of equality in Article 14 when regarding to gender issues.
  • 浅倉 むつ子
    2016 年 2016 巻 82 号 p. 81-92
    発行日: 2016年
    公開日: 2021/05/05
    ジャーナル オープンアクセス
    Despite the thirty years of the implement of the Equal Employment Opportunity Act, gender inequality in employment still remains unsolved. The primary factor of the gender inequality in employment in Japan is the deep-seated stereotyped roles for men and women in Japanese society. Child rearing and household affairs are largely regarded as women’s duties and about 60 percent of female workforce retires for childbearing. The second factor is corporate systems and customs deeply rooted in Japanese business community, which are only superficially gender-neutral. For instance, assessment standards of typical wage systems include subjective criteria that are susceptible to gender views of assessors, e.g. “enthusiasm,” “cooperativeness” and “tractability.” This article analyzes the current status of the doctrine of leading cases in relation to gender inequality in Japan, and proposes development of a framework to enhance the effectiveness of anti-discriminatory legislation, an efficient working- hour law to reduce long working hours of male labor force, and a system to apply the principle of equal pay for equal value work to the norms of lawsuit.
  • 手嶋 昭子
    2016 年 2016 巻 82 号 p. 93-110
    発行日: 2016年
    公開日: 2021/05/05
    ジャーナル オープンアクセス
    Although it has been 15 years since the Act on the Prevention of Spousal Violence and the Protection of Victims (Act No.31 of 2001) was enacted in Japan, we still have a lot of agendas to address for preventing domestic violence and protecting victims. It is partly because that the concept of domestic violence, which underlies the law, is not clear and there appears not to be any consensus about it in our society. Female victims of domestic violence have been told to endure their husbands’ violence on the reason that they are women. Additionally, they come to suffer from further difficulties after leaving their abusive partners; they lost their houses, jobs, communities and networks―the entirety of their lives. The problem of serious poverty imposes a heavy burden on these victims, especially those who have small children to maintain. They then face the degrading of their already degraded status as the second citizen in our gender unequal society. Domestic violence is a form of gender discrimination. But Japanese government and courts have not faced the fact so far. The tactics of abusive partners are subtle and complicated so that traditional framework of criminal violence or human-rights invasion cannot apply for them. Now we, as researchers, should explore the way of resolving domestic violence issue through understanding it as a problem of gender discrimination.
  • 問題化の歴史を振りかえって
    牟田 和恵
    2016 年 2016 巻 82 号 p. 111-122
    発行日: 2016年
    公開日: 2021/05/05
    ジャーナル オープンアクセス
    The history of sexual harassment issue in Japan poses an interesting case for examining how gender equality develops in law and the society as a whole. The concept and words “sexual harassment” suddenly became well known when the first sexual harassment case went to court in Fukuoka and the term ‘sekuhara’ was coined in 1989. The prevention of sexual harassment was legalized in 1997 as a part of Equal Employment Opportunity Act, eight years after its problematization in 1989. It was remarkably speedy if compared to other gender related legal issues in Japan. The paper argues that the prompt legalization was brought not for the sake of women’s right but for conservative moral standard. Besides, sexual harassment issue was considered peripheral, not main labor issue for companies. In spite that the sexual harassment legalization made crucial step for women’s right, such trivialization of the problem caused insufficient outcome: the public understanding of the problem remains superficial, which causes suffering for the victims even if they might win in court. Intertwined with stark and stiff labor market structure in Japan, when a woman leaves job owing to sexual harassment, she would inevitably become irregular and unstable worker and move downward in labor market. The paper explores the relationship of law and society through the development of sexual harassment.
  • 遠藤 美奈
    2016 年 2016 巻 82 号 p. 123-127
    発行日: 2016年
    公開日: 2021/05/05
    ジャーナル オープンアクセス
    This comment is on four lectures of the mini-symposium and shows three remarks from the viewpoint of constitutional law. At first it affirms the significance of the lectures which unraveled basic but entangled concept of gender, norm, and equality and indicated that legal and institutional problems for gender equality concerning domains of employment, violence, and sexual harassment remain unsolved. Then it suggests that it might be useful to interpret the first clause of article 14 of the Constitution to oblige the government to faithfully deal with unintentional discriminatory messages issued by a governmental institution, because such interpretation enables government’s negligence to tackle the problems in the domains mentioned above to be considered as discriminatory message by the government due to the category to which the victims and those suffer disadvantage there belong and requires policy redress. In the second place, it noted that positive action may have importance so that the legal and non-legal norms can be made based NOT on discriminatory sentiment nor prejudice. Finally, it asked lecturers their prospects about the possibility of legal theory on gender equality which takes the fact into account that all people including aforementioned victims and those who suffer, all care-givers and even “careless-man” need care.
企画関連ミニシンポジウム2 「権利の実質化の条件」
  • 地域的文脈を踏まえた権利支援の現場から
    三輪 敦子
    2016 年 2016 巻 82 号 p. 128-139
    発行日: 2016年
    公開日: 2021/05/05
    ジャーナル オープンアクセス
    This paper aims to examine effective approaches of assistance for realizing rights of individuals in culture-sensitive and context-specific manner, thereby exploring preconditions for substantiating rights. Since the turn of the century, universality of rights, or human rights, has been severely questioned and some groups of extremism openly manifest abusive policies and strategies especially against women and minority populations. At the same time, rights have become the most powerful argument for many people, such as women, disabled, and indigenous peoples, who are committed to improving their situations. The tension and collision in relation to this different understanding of rights seems to be one of the most critical issues of the 21st century. Several Asian leaders have overtly expressed views against universality of rights and advocated for “Asian Values.” Sen, a scholar who strongly contends against this argument, explains that tolerance and individual freedom, core values of the human rights, have existed in Asian cultures by referring to thoughts of ancient politicians such as Emperor Ashoka of the third century B.C. He also stresses the importance of communication, advocacy, access to communication, and public discussion in order that human rights can exert their effectiveness. These points resonate with an approach of a training for preventing HIV/AIDS that was developed in Africa and a process of an NGO in India to promote women’s health through rights-based approach. Empirical knowledge of empowerment of individuals through effective implementation of rights-based approach plays crucial roles so that universality of human rights are duly recognized and respected.
  • 澤 敬子
    2016 年 2016 巻 82 号 p. 140-153
    発行日: 2016年
    公開日: 2021/05/05
    ジャーナル オープンアクセス
    In order to examine what the feminization of the judiciary as a condition of realizing gender rights will be, this paper tries to study on whether and how the increase of women judges and gender equality of the judiciary is associated with the realization of gender rights, referring to those studies overseas. On one hand, it is difficult to assure the reduction of gender bias in the judiciary as the women judges increase, because, in some cases, the environmental factors such as the organizational norms of judges may cause a gender bias. On the other hand, if the dynamic situation in which to change the gendered way of being of the organization should take place, as the women judges increase, it can be said that it may lead to the reduction of gender bias through environmental factors.
  • 「性別影響分析評価法」を中心に
    朴 宣映
    2016 年 2016 巻 82 号 p. 154-166
    発行日: 2016年
    公開日: 2021/05/05
    ジャーナル オープンアクセス
    This paper aims to determine future challenges by examining the significance and outcomes of gender impact analysis and assessment in the legislation process pursuant to the Gender Impact Analysis and Assessment Act (hereinafter “GIAAA”) in Korea. The GIAAA was established in September 2011, and it has been in force since March 2012 in Korea. With the implementation of the GIAAA, gender analysis in the legislation process has become legalized. In accordance with this, the head of a central administrative agency or the head of a local government must assess the impact that a policy is likely to have on gender equality when the policy is formulated or implemented. In particular, the Minister of Gender Equality and Family is able to conduct gender impact analysis and assessment on laws in operation. Gender impact analysis and assessment on legislation considers whether gender-based statistics are categorized by gender without any other reason, whether stereotypes exist, whether gender attributes are considered, and whether there are systems to enact gender equality. The GIAAA has an important effect in that it makes it possible to prevent the legalization of gender discriminative policies. However, as the assessment framework has been standardized, there has been a tendency to understand gender equality as the quantitative balance between the men and women who are the beneficiaries of governmental programs. In the light of this point, it is necessary to continue to advance this system.
  • 辻 由希
    2016 年 2016 巻 82 号 p. 167-178
    発行日: 2016年
    公開日: 2021/05/05
    ジャーナル オープンアクセス
    For the purpose of realizing gender equality in the society, Japanese governments have established various legislation and institution since the 1990s. However, people do not seem to feel that gender equality has come to fruition. This paper aims to clarify the reasons for the gap between legislation and its outcome by linking the political process for promoting gender equality to the changes in the Japanese political structure. For that purpose, this paper analyzes women’s advancement policies adopted by the current Abe Shinzo cabinet as a case study. This paper argues that the structural changes in Japanese politics have simultaneously promoted centralization, decentralization, and outsourcing in making and implementing gender equality policies. As a result, it is expected that, first, the prime minister and his/her cabinet have stronger power on decision making about the outline of gender equality policies. Second, the local politics become more important because differences among local governments are expanding in planning and implementing policies. Third, outsourcing may lead to “de-politicization,” in which policy implementation is based on the market principle, rather than the realization of equal rights or government’s responsibility. In addition, policy output could be affected much by which organization is running gender equality programs on the ground.
  • 阿部 昌樹
    2016 年 2016 巻 82 号 p. 179-184
    発行日: 2016年
    公開日: 2021/05/05
    ジャーナル オープンアクセス
    Policies institutionalizing new legal rights for promoting gender equality are easily forced to be mere nominal in the processes of policy-implementation, or reduced to ineffective ones through the processes of policy-evaluation conducted by those who are antagonistic to the original policies, in the similar way as many other policies are. It is therefore necessary for the politics of gender which aims at realizing the idea of gender equality to get involved in the whole policy cycle comprised of the processes of agenda-setting, policy-making, policy-decision, policy-implementation, and policy-evaluation.
論説
  • 祇園祭山鉾保存会財団法人化におけるコミュニティの法使用
    古山 真知子
    2016 年 2016 巻 82 号 p. 185-217
    発行日: 2016年
    公開日: 2021/05/05
    ジャーナル オープンアクセス
    This paper focuses on the legal mobilization by the community in making a foundation of Gion Festival Yamahoko Association. Law has two faces, law as milieu and law as resource, for communities. When changes of milieu including changes of law have a severe effect to the traditional festival, people deal with it by the legal mobilization that is making a foundation of Yamahoko Association. I re searched Yamahoko associations for about three years and in this paper pick up four associations that had called up law. The mobilization of law is tied to obtaining three big essential resources “human,” “material” and “pecuniary,” in conservation of the traditional festival. Gion Festival has more than 1000-year-old history in Kyoto and a very traditional style. In such a traditional festival, the making of the foundation has beneficial effects on “pecuniary,” “material” and “human” resources, moving the estate “cho-ie” (community’s common house) and the festival goods “yamahoko” to the fundamental property of the foundation. Each association makes it possible to preserve Japanese traditional festival by using the modern law. Here we can observe the different connection between the society and the law from the aspect that the mobilizing law typically implies modernization, democratization and westernization to the society.
  • 形式的合法性と実質的合法性の統合
    遠藤 直哉
    2016 年 2016 巻 82 号 p. 218-248
    発行日: 2016年
    公開日: 2021/05/05
    ジャーナル オープンアクセス
    The rule of law includes formal legality and substantive legality. In my view, the most crucial responsibility of the bar is to realize substantive legality in providing legal service for clients. In the United States, the rule of lawyer and the regulation of legal service by introducing the UPL (unauthorized practice of law) rules have developed inseparably from each other (the U.S. model). In other countries, the bar is not the only profession which deals with legal matters. There are other law-related occupations. In Japan, beside lawyers (36,300 people), there are “law-related professionals” (191,400). Tax attorney: 75,500, judicial scrivener: 21,600, patent attorney: 10,600, licensed social insurance consultant: 38,800, administrative scrivener: 44,700. Lawyers have the ability to utilize the substantive legality after law school education. Law-related professionals obeyed law and order only with the formal legality, and are not eligible for court work. On June 30, 2015, Japanese Government decided at least 1,500 passers of bar exam among 5,000 students. Total passers should be 3,000 which Japan’s Judicial System Reform Council decided 10 years ago. My proposal is that 1,500 passers of bar exam can become lawyers, prosecutors, or judges, and next rank 1,500 should become related professionals with court work authority after graduation of law school. The related professionals will be abolished in 20 years.
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