著者

吾妻 聡

出版者

岡山大学法学会

雑誌

岡山大学法学会雑誌 (ISSN:03863050)

巻号頁・発行日

vol.65, no.2, pp.211-284, 2015-12

著者

吾妻 聡

出版者

The Japanese Association of Sociology of Law

雑誌

法社会学 (ISSN:04376161)

巻号頁・発行日

vol.2005, no.63, pp.186-216,267, 2005-09-30 (Released:2011-04-13)

参考文献数

44

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In this paper, I, first, examine the controversy on the rights system and discourse between the critique of rights by Critical Legal Scholars and the vindication of rights by Critical Race Theorists. This examination urges me to contend that what is needed is not abandonment of liberal rights but reconstructive approach to the existing institutional arrangements of liberal rights. To envisage and acquire the direction toward another conception and system of rights, I follow Roberto Unger's methodology (deviationist doctrine) and normative argument of social theory. Unger's radical project (Empowered Democracy or Super-liberalism) proposes alterative vision of more egalitarian and democratized society whose structures (formative contexts), Unger insists, are more self-revisable and plastic. I find out a supportive example for Unger's vision in the practice and ideal of so-called "New Social Movements, " and attempt to elucidate their stake and aspiration for more egalitarian and democratic social settings in private sphere. My sense is that Unger's vision is not at all far from the ideal of society and human association which is an emergent germination but still labeled as deviant. Finally, I turn into Unger's legal theory version of deviant doctrine and proposal, and paraphrase "immunity rights" and "destabilization rights." Even though these alternative proposal of rights is controversial and is frequently criticized for its idiosyncrasy and paradoxical characteristic, I contend that its ideals of heightening the context-revising capability of human beings and the self-revising character of institutional arrangements are essential not only because we can see its emergent germ in the movements' practices in private sphere, but also because ultimate justification of constitutional order comes from active invitation of ceaseless criticism toward the existing social settings and institutional arrangements by ordinary men and women. The deviant moment has to be interpreted as the representation of universal ideal of democracy.