Many problems related to air, water, and environmental pollution have arisen in our country recently. In order to prevent these problems, a right known as "Environmental Right" was conceived as a human right under constitutional theories. Support for this environmental right is concretely provided for in Articles 13 and 25 our constitution. There are in effect, provisions which guarantee the right to maintain life. In other words, the content of this new right is one which is included under basic human rights. For instance, the former article guarantees the right to life, liberty, and the pursuit of happiness, and, the latter one guarantees the right to maintain the minimum standards of wholesome and cultured living.

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This paper proposes a new concept of "contemporary type litigation" (Gendaigata-soshou) from the perspective of legal sociology, distinct from that of legal dogmatics. After a brief survey of various usages of the term in the recent lierature, the author puts forward the concept of contemporary type litigation defined as one that calls for, beside the resolution of a specific dispute, a change in normative structure itself, whether at the level of formal of formal legal rules and institutions, at the lebel of organisational practices, or at the level of social norms and customs governing everyday social relations. This definition widens the extension of the term somewhat so as to include not only thoselitigations involving policy issues and a large number of organised plaintiffs (e. g. airport noise suits and SMON suit), but also those filked by individual plaintiffs concerning, for example, babysitting arrangement between neighbours, hair regulation of school children, doctor's malpractice, etc. Thus, the author proposes to subdivide the concept into three subcategories: (1) the human relations suit; (2) the large scale damage suit; and (3) the public policy suit, corresponding to the differsnt levels of nomative structure called into question. Behind these numerous litigations of novel type, there is, according to the author, an underlying cry for and an impetus toward a social order based on the principle of individual autonomy.

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Social movements are collective activities that seek to alter a regime. A system of legally enforceable rights is part of a regime. Collective activities that seek to institutionalize new legal rights are thus a form of social movements.
Drawing on the sociology of social movements, this paper presents a model of such movements and a series of hypotheses on conditions for their formation, maintenance, and success. Factors considered are characteristics of the right to be institutionalized and those of movement participants; availability, resources, and strategies of the leadership; characteristics of the decision-making elite, opponents, and competitors; mobilization of the media and public support; the larger social context; and doctrinal sophistication on the part of the movement.
Hypotheses were tested with cases of varying degrees of success, regarding the environmental right (kankyo-ken), the right to personal integrity (jinkakuken), and the solar access right (nissho-ken), all related to prevention or remedies of environmental destruction. This paper finds that while lack of access to other policy-making arenas has brought many movements to the judiciary, the increasingly conservative Japanese judiciary is not likely to adopt new rights that have certain characteristics, however sophisticated their doctrinal construction. The paper concludes with an observation that many movements will have to become explicitly political.

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わが国では,戦後,公共事業や行政一般をあぐって「公共性」のあり方が問われてきたが,そこでは,基本的人権を保障する「国民的公共性」と大企業の私的利益に奉仕する「国家的公共性」が対立してきた。国有林野事業の目的は,経済的機能及び公益的機能を通じての「国民的公共性」の実現に置かれるべきだが,実際には,改善計画の下で,「国民的公共性」の縮小が続いている。国有林野事業における「国民的公共性」の実現を阻む要因としては,外的要因(国の産業政策・土地政策や官僚主義の問題)と内的要因(「土地所有権の絶対性」と「行政権の優越性」)がある。「国民的公共性」を実現するためには,まず,国の産業政策及び土地政策そのものの見直しが必要であり,その上で,国有林野事業の目的を,(1)自然環境・国土保全を通じて国民の環境権・自然享有権を保障すること,(2)地元地域の振興を通じて農山村住民の生存権・生活権を保障すること,の二点におくべきである。また,行政裁量の範囲を制限するためには,国民・住民による民主的統制の手続きが不可欠であり,国有林野事業の諸計画のみならず,「内発的発展」を実現するための自治体の地域計画においても,住民参加を実現しなければならない。

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The subject of this paper, referred to in Japan as 'policy-oriented contemporary litigation' (POCL), is lawsuits in which plaintiffs seek to obtain changes in governmental policies and laws. Mainly relying on pollution and environmental cases, this paper (1) summarizes the present situation of POCL, (2) evaluates the present situation from the viewpoints of different models of POCL, and (3) argues for further reforms of justice system.
The paper presents three models of POCL as heuristic devices for summarizing and evaluating the present situation of POCL: the first model seeks to obtain results as the direct consequence of a judicial decision; the second model, which is a variation of the first model, seeks to obtain results as the direct consequence of settlement after filing a suit, usually after obtaining a favorable decision from the court of first instance; and the third model seeks to obtain results as the indirect consequence of litigation itself when the government is not a party or when it prevails in court. An extensive examination of relevant cases leads to the conclusion that POCL has had little direct influence of judicial decisions. The clearest example is the failed social movement that sought to use the courts to establish the so-called environmental right (kankyo-ken). In addition, although one may recognize direct positive consequences from settlement or indirect positive consequences from litigation itself in a fairly large number of cases, they have rarely led to the creation of new legal rights.
This paper recognizes that with this situation of POCL as background, an increasing number of scholars argue that social movements should avoid litigation and should instead seek to use legislation to pursue their desired outcomes. For example, one prominent legal scholar argues that new legal rights that limit constitutionally-protected property rights should not be pursued through civil litigation, but that they should turn to the democratic process of legislation to enact laws and ordinances. A leading sociologist of social movements similarly argues that environmental NPOs and NGOs should collaborate with administrative agencies and businesses to produce new policies.
This paper argues, however, that litigation is both inevitable and necessary. The paper identifies several reasons for its inevitability and necessity: policy-makers and legislators do not always recognize the need for new policies and laws swiftly, correctly, or fairly; the legislative process is not necessarily open to all concerned parties, and excluded parties may want to turn to the judicial process when they experience injury or are concerned about future injury; collaboration or partnership between citizens and the government or business is not generally equal, and citizens may need to use litigation in order to maintain or create an equal partnership; there is no guarantee that administrative agencies use their mandated or discretionary powers even when they have such powers, and citizens may need to sue them in order to require them to use those powers, as indicated in the Supreme Court decision of October 2004 that held the national and prefectural governments liable for their failure to use administrative guidance by 1959 to prevent Minamata disease; except in the case of extremely technical provisions, the meaning of legal provisions is always debatable, and those who are unsatisfied with the current situation may want to challenge prevailing interpretations, ultimately through litigation; and the direct impact of settlement is generally obtained after a favorable decision at the court of first instance, while indirect impacts of litigation may be expected only after litigation is filed.

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