This article has been written with the object to bring the methodological problems into relief, which we are bound to encounter in our scientific researches in the administrative law cases. The past academic trends in our case law studies would be generally represented by the three major schools-the conceptualistic, the realistic, and the social-scientific-with their respective characteristics as follow:
1) the conceptualistic approach-a traditional view on the case law studies. The followers of this school have tried to make their own subjective evaluation of the cases through their comments on each case or a group of cases, to find and declare the judge-made law, the specific legal rules applied to the case or cases.
2) the realistic approach-Prof. Kawashima of Tokyo University has been advocating this approach, with emphasis upon the facts found rather than the rules applied, toward the better assurance for the predictability of future decisions, on the basis of the realistic patternization of the past trends in the decision makings.
3) the social-scientific approach-Prof. Hasegawa of Nagoya University favors the bare facts, rather than the facts found, as the start-line of case law analysis, and contends that more attention should be paid to the legal ideology which plays crutial role in the process of decision makings.
It is only after the World War II, the academic concern, in the realm of the administrative law, has been extended to the case law, and they just followed the traditional line in their researches in the judge-made law. Little reexaminations or reconsiderations on its methodology have been reported. The lack of methodological reevaluations reflects the scarcity of the settled principles or the fluidity, in the court room decision makings, as compared with the other fields of law.
Individual timidity or spiritlessness in the claiming of their own rights as well as the traditional public law maxim of the prevalence of state power have contributed much to prevent the courts to establish the principle. It is no wonder, under those circumstances, the difficulties present themselves in the establishment of the principle and in the classification of the situations which bring forth the law suits. Such constitute the particular characteristics of the administrative jurisprudence as they are. If one realizes the contemporary community situations, calling for a drastic change or replacement of the fundamental principles in our positive public laws, the administrative law in particular, built upon the understandings of the community situations of the past era, with limited modifications or transformations, one may easily find the defect and limit of the realistic approach.
Studies in the administrative law cases should be done in the pursuit, not of the normative aspect of the judge-made law, but of the function of our positive legal system, i.e., how the system has worked or is working, in its reality. It is required, needless to say, not only to begin our researches with the bare facts, but also to analyse the community demands and the national legal policies involved in the issues or the controversies, in the broader light of social science. The presentation of constructive policy alternatives, worthy of pragmatic use and attention, could emerge itself only from the depth of such a realistic analysis into the particular characteristics of the situations.
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