36 0 0 0 OA 主体と制度

著者
日比野 勤
出版者
日本法社会学会/有斐閣
雑誌
法社会学 (ISSN:04376161)
巻号頁・発行日
vol.2006, no.64, pp.43-59,275, 2006-03-30 (Released:2012-06-20)
参考文献数
27

Human entities are of a psychic existence. They are of a pathos-like, passive existence and as such, need to act towards the outside world. The autonomous existence of an entity emerges when it actively engages the world, and through a common actual engagement with the world emerges the autonomy of an organisational entity. However, as a mechanistic way of thinking develops, the actual psychic existence of the entities comes to be replaced by a physical psychic existence. In such circumstances, although entities are still autonomous and make decisions on their own, they are unable actively to engage with the outside world. They are merely elements in an operational sequence, and the autonomous existence of not only the individual entities, but also of organisational entities is denied in such a situation. In recent years, with the growing influence of spiritualism, people increasingly become a virtual psychic existence. Here, the distinction between reality and the virtual world becomes blurred, and occasionally, a forceful, possibly even violent, realisation of the virtual world is attempted, although this does not mean that there is any actual commitment to the world.Law cannot be immune from such transformation of entities, but the legal system has, however, so far been unable to cope with such entities in transformation. Problems such as the appropriateness of using brain-death as a criterion for medical death, refusal of blood transfusions by Jehovah's witnesses, and the control imposed on Aum-Shinrikyo as an organisation should be understood in this context.
著者
牟田 和恵
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.1993, no.45, pp.252-255,321, 1993

It has been stressed that in modern Japan, Goverment utilized institutions of "Ie", traditional type of family, and patriarchal moral of Confucianism for mobilizing people's obedience to Emperor and the state.<br>But modern type of families, of which characteristics are domesticity and affectionate relationship between family members has emerged since middle of Meiji era, and this type of family was also utilized as tools of control over people by Goverment. In this paper, this will be proved by analysing textbooks on ethics used in 1870-1945.
著者
田中 吉備彦
出版者
日本法社会学会
雑誌
法社会学 (ISSN:04376161)
巻号頁・発行日
vol.1957, no.9, pp.1-22, 1957-04-30 (Released:2009-04-03)
参考文献数
18

7 0 0 0 OA 性暴力と法

著者
角田 由紀子
出版者
日本法社会学会/有斐閣
雑誌
法社会学 (ISSN:04376161)
巻号頁・発行日
vol.2001, no.54, pp.44-58,259, 2001-03-30 (Released:2009-01-15)
参考文献数
11

The situation regarding victims of sexual violence has dramatically changed in this decade in Japan. Mainly women activists who addressed the issue of victim's rights of sexual violence have made this change. The number of victims who seek legal remedies has increased. This movement has made it clear that our legal system has not worked well for giving them appropriate remedies.In the field of criminal law, rape is still determined under the influence of the patriarchal ideology. For example, rape is determined whether a victim made utmost resist against her offender. This way of determination can release rapists who know the victims, because in those cases it is more difficult for them to resist strongly. In addition, it is not likely for the victims of non-stranger rape to report the rape to the police. Victims still have faced the victim-blaming attitude of the society as a whole as well as a legal system itself. The above mentioned problem of the criminal law has also been seen in civil cases in which victims are demanding compensations from offenders. This happened particularly in sexual harassment lawsuits. The cases in which plaintiffs were defeated were determined by judges who relied on so called rape myth. Another problem of the civil cases is low amount of compensation, even though in some cases we can see relatively high amount of it.The root cause of the problem is that there is merely education of sexual discrimination in the legal department of universities and the Legal Research and Training Institute run by the Supreme Court. The change of the issue of women's rights, which happened internationally in this decade, has not yet reached those educational bodies for lawyers.
著者
岡野 八代
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.2006, no.64, pp.60-76,276, 2006

Legal recognition of same-sex marriage is one of the biggest political issues of gay and lesbian movements in both Canada and the U.S. While same-sex marriage was legalized in July 2005 in Canada; the equal right to marriage for gays and lesbians is far from being established in the U.S., as suggested by the debates during the 2004 elections. What makes so much difference between the two countries on this issue? In searching for a key to answer this question, this paper intends to trace the difference to different understandings of "the politics of recognition."<br>Comparing theories of "the politics of recognition" in Canada and the U.S., as represented by two distinguished thinkers, Nancy Fraser and Charles Taylor, this paper explores the critical points made by each thinker and the inevitable dilemma which "the politics of recognition" reveals. Unlike Fraser's argument that claims for social justice since the 90s are increasingly divided into two conflicted claims-one seeking redistributive justice and the other, the politics of recognition-Taylor points out that "the politics of recognition" is deeply rooted in the modern liberalism, especially the politics of equal respect.<br>Following the Hegelian idea of constructing self-consciousness, Taylor views recognition by others as crucial for self-formation, and misrecognition as fatal to it, especially in the modern age. Through the recent changes in the gay and lesbian movement in Canada, we can realize that seeking equal rights under the law paradoxically de-politicizes the claims of the liberation movement of the 70s, and worse than that, forces the multiple actors into the single category listed in the law.<br>"The politics of recognition" à la Taylor discloses that "identity politics" does not result from claims for recognition, but from claims for equal respect. Or rather, a superficial understanding of self formation under the politics of equal respect and uncritical belief in the reversibility of a self and others gets claims for recognition more acute and serious in the modern age.
著者
沼崎 一郎
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.2004, no.60, pp.101-116,235, 2004-03-30 (Released:2010-04-15)
参考文献数
8

This article argues that the concept of sexual harassment poses a radical challenge to the principles of objectivity and universality that underlie modern law by putting the emotional state of the alleged victim (his/her feeling of "not wanting" or "unwelcoming" the sexual advance of the alleged offender) as the sole criterion of whether the victim's right to sexual freedom is violated or not and thereby "subjectifies" the right claims. This article also argues that the concept of domestic violence poses exactly the same challenge to modern law by defining violence as a means used by one spouse for generating fear in the other in order to dominate her/him. Here again, subjective state of mind-fear-is postulated as the criterion of whether an act of violence is committed or not. By "subjectifying" the right claims, the two concepts of sexual harassment and domestic violence radically individualizes and particularizes the criteria of wrongness of conduct. Ostensibly same conduct may or may not be judged as harassment or violence by the alleged victim depending on his/her subjective assessment of the act. The two concepts challenge the basic presupposition underlying modern law, namely, universal application of objective and conduct-based standards in deciding on the criminality or tort damages. The two concepts call for a new radically victim-centered standard of misconduct that places the victim's sense of repulsion and fear as the sole criterion of harassment and violence. This article finally argues that in the context of a relationship of unequal power the stronger party is held liable for extra care not to offend or threaten the weaker party.
著者
蟻川 恒正
出版者
日本法社会学会/有斐閣
雑誌
法社会学 (ISSN:04376161)
巻号頁・発行日
vol.2003, no.58, pp.29-44,272, 2003-03-30 (Released:2009-04-22)
参考文献数
22

My article deals with a long-neglected question on Japanese defamation law: when a court order is a "specific performance"to restore a victim's reputation, should it be considered mandatory or optional?My aim is to make an inquiry into the "coercive" nature of a court's decision. Several dichotomies and antinomies, which I took from both French and English legal traditions, have been given an analysis: remède and remedy, réparation en nature and répatation par équivalent, exécution volontaire and exécution forcée, as well as enforcement and accomplissement.
著者
吉田 善明
出版者
日本法社会学会/有斐閣
雑誌
法社会学 (ISSN:04376161)
巻号頁・発行日
vol.1978, no.30, pp.6-21,224, 1978-03-30 (Released:2009-01-15)
参考文献数
33

This treatise is written with a view to analysing present constitutional powers of the British Monarchy and the practice in control of the Queen in Parliament and the People.The main content is as follows:IntroductionI. The position of the constitutional Monarchy.II. Political powers and social powers of the Monarchy.(i) Political (social) powers of the Monarchy in the U. K.(ii) Functions which the Queen performs in the Commonwealth.III. The practice in control of the Queen in Parliament and the People.(i) On the practice in control of the Queen in Parliament.(ii) On the practice in control of the Queen by the People.Conclusion
著者
富井 利安
出版者
日本法社会学会/有斐閣
雑誌
法社会学 (ISSN:04376161)
巻号頁・発行日
vol.1983, no.35, pp.139-143,239, 1983-03-30 (Released:2009-01-15)

The purpose of this paper is not to examine the Supreme Count Decision in in the Osaka International Airport Case itself, but to offer a perspective of the action of environmental disruption.In the first section, I have proposed to divide the action of environmental disruption into three forms, i. e. action for damage, action for injunction after environmental injury occurred, action for injunction before environmental injury comes and insisted on the urgent question and subject in each action.In the second, I have indicated, on the annexed paper distributed to the meeting, the character and subject of actions of environmental disruption in and around Seto Inland Sea.
著者
仁木 恒夫
出版者
日本法社会学会/有斐閣
雑誌
法社会学 (ISSN:04376161)
巻号頁・発行日
vol.2004, no.61, pp.92-110,217, 2004-09-30 (Released:2010-04-15)
参考文献数
42

This paper analyzes the practice of legal assistants at law firms in Japan. Lawyers sometimes say that legal assistants should acquire more legal knowledge and legal skill than now for the rational management of law firms. The process of providing legal services at law firms is constructed not only of legal knowledge and legal skill, but also of many communications among lawyers, clients and legal assistants. This paper argues that, for lawyers, teamwork with legal assistants is an important part of reasonable legal practice.
著者
福井 康太
出版者
日本法社会学会/有斐閣
雑誌
法社会学 (ISSN:04376161)
巻号頁・発行日
vol.1999, no.51, pp.171-175,287, 1999-03-20 (Released:2009-01-15)
参考文献数
6

This paper aims to reconsider the potential of Niklas Luhmann's theory of legitimation through (legal) procedure. According to the ordinary understanding of his theory (probably also his own understanding), legal procedure is understood as a kind of coercive system, which isolates parties, absorbs their protests and makes them accept conventional legal decision unwillingly.But this understanding of Luhmann's theory of legal procedure appears to be impertinent, in spite of Luhmann's own understanding. Man can understand the functions of legal procedure opener, in the scope of possible understanding of his theory. With some devices, which strengthen activity of parties in the legal procedure, parties can interpret and define their own troubles advantageous to themselves, referring to various kinds of factors, which are not limited to legal factors, that appear in the court (for example, interpretations or expectations of the same kinds of troubles by other people, ways to cope with the same kinds of problems etc.). Following the latter understanding, parties can learn the results of the legal procedure positively. It is expected that by the effects of 1998 amendment of code of civil procedure, appropriate devices in the legal procedure become easier.
著者
橋本 祐子
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.2006, no.65, pp.82-95,254, 2006-09-30 (Released:2012-06-20)
参考文献数
40

The purpose of this article is to examine the libertarian theory on punishment, which claims that punishment should be reduced to restitution.What is the problem with punishment? Libertarians claim that the most serious problem is that it is unjust to crime victims. Under the punishment system, crime victims cannot be paid restitution. Further, the cost of administrating prisons is paid from money collected through tax, which is borne by citizens, including crime victims. This means that a double burden is placed on crime victims.What is the conception of justice that law must achieve? From the libertarian viewpoint, the most important issue is corrective justice. Corrective justice requires that restitution be provided to crime victims. To that end, restitution, not punishment, should be the main negative sanction.According to those who hold the view that restitution is an alternative to punishment, criminal liability should be reduced to civil liability. Such a view attempts to overcome the traditional thought that civil law must be clearly distinguished from criminal law, which is the main reason why crime victims have been overlooked in the Japanese criminal justice system. Moreover, it can offer a foundation for crime victims to have the right to seek restitution. Therefore, this view is highly significant in contemporary Japan because it can provide a perspective to criticize the present situation, in which justice is not delivered to crime victims.
著者
高橋 哲哉
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.2002, no.56, pp.16-25,273, 2002

In the last decade of the 20th century, two significant events were held to deal with the pasts which were profoundly traumatized by the crimes against humanity; The Truth and Reconciliation Commission in the Republic of South Africa and the Women's International War Crimes Tribunal on Japan's Military Sexual Slavery.<br>The former avoided the "Nuremberg Option", that is the trial of criminals, in giving priority to establish the national unity and reconciliation. Amnesty was granted to the persons who had made full confession of the truth about their criminal acts with political objectives in the period of Apartheid. This principle of "justice without punishment" was guided not only by some inevitable "material" conditions in the new-born Country, but also by the philosophy of "forgiveness" in its hegelien or arendtien version.<br>By contrast, the latter declared itself to be a renewal of "Tokyo Tribunal" in order to end the culture of impunity. Three days of trial produced the judgement according to which the Japanese Imperial Army' s "comfort women" stations and wartime sexual violence constituted crimes against humanity and the Supreme Commander of the Army and Navy, Emperor Hirohito did have legal responsibilities. Thus the Women's Tribunal, without real judicial effect, contested both the post-war Japanese culture of impunity about war crimes and the international culture of impunity about crimes against women in war.<br>These two events can be highly appreciated as those which offered public spaces where the voices of victims and perpetrators could be heard seriously for the first time.