This paper analyzes the constitutional decision making process of Japanese courts from the perspective of judges’ personal attitudes toward constitutional and legal interpretation. Further, the paper analyzes the various organizational influences upon judges. Thus, the paper sees the court and its decision making in the dynamic, political context of human behavior and institutional relationships. In particular, this paper centers its analysis on the Japanese nationality case of 2008. The Japanese Supreme Court, in a rare exercise of its power of judicial review, held a portion of the law unconstitutional. This paper focuses on the Tokyo District Court decision which essentially served as a draft for the Supreme Court decision, and finds that the judge of the Tokyo District Court seems to have been instrumental in bringing out this case. This judge has been in an extensive “dialogue” with the more conservative Tokyo High Court over various areas of administrative law where the discretion of the government and individual rights had come into conflict. His decisions have clarified the attitudinal conflict between judges in these areas. In addition to personal attitudes, the paper finds that organizational influences had an effect on the judges’ decision making. In particular, the differences between the Tokyo High Court and the Tokyo District Court, the composition of the court that handled the cases (the decisions were written by panels of 3 judges), the career track of the judges, and the trend within the Supreme Court all seems to have influenced the judges. On these points this paper presents a preliminary analysis, and a systematic evaluation which applies this analytical perspective to a wider set of data shall be a promising field of inquiry for the study of law and politics in Japan.

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The enlarged EU has now entered on a new phase; ratification of Treaty establishing a Constitution for Europe. The Constitution, which represents the will of EU to be more democratic political community, defines the EU citizens as one of the subjects of New Europe. The ‘EU citizen’ is every person holding the nationality of a member state. Consequently, the third-country national residents are excluded. Moreover, they are at a disadvantage by comparison with EU citizens. The EU citizen has a lot of rights which third-country nationals (TCNs) don't because the EU Citizenship is the membership both in EU and member states. In other words, the Duality of EU Citizenship disadvantages TCNs. However, the boundary of citizens cannot be determined by democratic processes because by definition, democratic decisions are made only by the citizen. Initially, at least, the boundary of citizens is given. However, there are immigrants crossing borders. In this sense, the democratic citizenship is defined as permanent re-demarcation of the boundary identifying citizens and subjects. Therefore in this paper, we explore the access of EU Citizenship in order to make EU Citizenship democratic, focusing on legal status of third-country national residents in the context of the ‘integration’ of TCNs in EU which has established ‘progressively an area of freedom, security and justice’ since the Treaty of Amsterdam. In this area, TCNs are now considered not only human resources, but also members of society. In 2003, EU established ‘long-term resident status’ of TCNs, which would be a core legal status in ‘integration process’. The long-term residents have many rights including freedom of movement. However, the EU Citizenship is still linked to nationality of a member state, which is the final legal status in ‘integration process’ of TCNs. Paradoxically, if a long-term resident exercises her right to free movement, she and her family may not meet conditions of nationality acquisition because of the residency requirement. Therefore, the asymmetry of duality turns out to be a problem, and the EU Citizenship must have another criterion independent of member states nationality. Finally we would find the possibility of open membership in the symmetrical Duality of EU Citizenship, which could ensure integrity of memberships in EU.

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This article examines the Japanese government’s attitude toward the issue of “nationality of married women” in the Hague Conference for the Codification of International Law in 1930, the first diplomatic conference hosted by the League of Nations for the purpose of codification of international law. Through investigating the decision-making process on the Conference within the government, it aims at revealing the Japan’s constructive engagement in the codification project conducted by the League of Nations, which set in motion the advancement of international law during the inter-war period.

It is well known that the Hague Conference marked a watershed in the history of international law. Though the achievements in the Conference were meager, it surely paved the way of setting up the current codification system in the United Nations, particularly the establishment of the International Law Commission. Seldom discussed and little known is how Japan responded to this major development in the field of international law. While some preceding literatures have elucidated the passive, or sometimes hostile, stance of Japan toward enhancement of laws of war, they have yet to show a complete picture of the Japanese view on international law at that time since they do not sufficiently address the issues of laws of peace with which the Hague Conference was mainly concerned.

Probably, no issues discussed in The Hague attracted attention and received publicity more than nationality of married women. One of the reasons was that it touched the heart of the tension between the concept of family unity and gender equality. At the time of 1930, while most countries still adhered to the old principle that wife follows the nationality of husband in case of international marriage, some national legislations had discarded it and allowed an alien woman who married their national to retain her original nationality if she wished so. It was against this background that the Hague Conference attempted to reconcile the difference between legislations in nationality of married women by means of multilateral convention.

While Japan still maintained the old principle in its nationality law based on the traditional family values, it took a somewhat flexible stance in The Hague. Interestingly enough, Tokyo instructed its delegation to the Conference that if a consensus emerged among states, they could go along with the proposed article, which granted a married woman the right to choose not to acquire husband’s nationality. These findings suggest that at that time Japan sought to project its image as an important contributor to the development of international law through its active participation to the codification project by the League.

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A nation-state is by its definition composed of center-margin structure, and in aliens' law itself is embedded this structure through the Constitution. But not only through constitutional law, but also through nationality law, and also through some other elements in the aliens' law, is embedded this structure in the aliens' law itself.
Having these things in mind, some suggestions can be given from the analysis of the reform of the French nationality law in 1993. (1) This reform reinforced the centrality of the imagined community in some ways, one of which is changing the meaning of 'immigrants' from outsider to insider. (2) The criteria such as culture, national consciousness and etc. which enables us to conceive that there surely is a nation, function in piles, as layers, can not be separated each other, but can be transformed.
According to a nation-state theory that goes well with the suggestions mentioned above, aliens in the social relations are categorized into 'stereotypes' such as 'guest workers', 'immigrants', 'Asians' and etc. The center-margin structure in aliens' law, such as a contrast between those who controle and who are controled, functions in making this stereotype by helping us to conceptualize these people. Also this structure in law reinforces the centrality of layered integration of the nation-state, and this layered structure will be the basis of the stereotyped-categorization. In this way, the center-margin structure in aliens' law prepares the setting of the scene in which aliens' rights play a part.

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本稿は, 近代日本の搖籃期における「国際結婚」を『明治前期身分法大全』を通して分析する。明治政府は, ナポレオン法典を模しながら, 明治6年に内外人民婚姻条規を制定した。, 帰化法制定よりも実に四半世紀も早く国際結婚に関する法律を定めたことになる。「外国人の婿養子」が「日本人タルノ分限」を得ることを許した規定は, 世界でも稀であった。分限とは, 「家」の成員になることによって得られる社会的地位を指す。
ナポレオン法典と内外人民婚姻条規との相違を, 婚姻によって, 妻の国籍は夫に従い, その結果父の国籍が子に伝わる西洋型の「父系血統優先主義」と「分限主義」とに分けて考察する。さらに, 「国際結婚」の歴史的実態に密着した分析枠組みを提案する。制定以前の考察期間における「国際結婚」の分析は, 夫あるいは妻の国籍別で分類するよりも, 婚姻形態と「分限」の得失に着目した以下のカテゴリーを利用したほうが, 有益であると考える。
(a) 日本人女性と外国人男性の組み合わせで日本人女性が「婚嫁」する場合
(b) 日本人女性と外国人男性の組み合わせで外国人男性が「婿養子」となる場合
(c) 日本人男性と外国人女性の組み合わせで外国人女性が「婚嫁」する場合
(d) 日本人男性と外国人女性の組み合わせで日本人男性が「婿養子」となる場合
上記のような歴史社会学的類型を用いて, 分限主義時代の「国際結婚」の特徴を明らかにする。

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