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.

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
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, 2006-03-30 (Released:2012-06-20)
参考文献数
35

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."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.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."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
野口 裕二
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.139-152,237, 2004-03-30 (Released:2010-04-15)
参考文献数
13

This paper considers how the sufferings in our age are socially constructed and how we can overcome them and create an alternative story based on the narrative approach. Sufferings have been gradually regarded as some psychological entities such as Traumatic Stress or PTSD. This process can be called "psychologizing of reality" or "internalizing of sufferings" These require us to consult with a psychological or psychiatric expert and then the sufferings are individualized, personalized, and pathologized without considering its social origins or backgrounds. Against these conditions, narrative approaches propose some new strategies: externalizing of the problem to invalidate or de-construct the dominant story of sufferings, providing a narrative community to encourage sufferers to tell the alternative story on their lived experience. Suffering and overcoming are not psychological entities but social products through our everyday discursive practices. Narrative approaches show us the new way to understand sufferings and to listen sufferers' narratives against the dominant discourse.

19 0 0 0 OA 性暴力と法

著者
角田 由紀子
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.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
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
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

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
新田 英治
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.1956, no.7, pp.33-52, 1956
著者
江原 由美子
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.2002, no.56, pp.150-165,278, 2002-03-30 (Released:2009-01-15)
参考文献数
16

Until 1980s', the argument that women have rights to control their own fertility-so called women's rights to choose-had been what many feminists can be agreeable to, which is not necessarily true in some cases today. These cases are relevant to the fact that the developments of Assisted Reproductive Technology after IVFs, or in vitro fertilization, caused different problems since the anxiety that the argument for women's rights to choose might have an effect on encouraging Assisted Reproductive Technology after IVFs in its development and pervasion is spreading over feminists.This article aims to analyze the reasons why the argument for women's rights to choose has an effect on encouraging Assisted Reproductive Technology after IVFs in its development and pervasion if it really has. And I'd like to prove that one of the reasons consists in a concept of a body which attributes reproduction to women's responsibility.
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
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
福島 正夫
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.1956, no.7-8, pp.123-206, 1956-07-20 (Released:2009-04-03)
参考文献数
195
著者
樋口 陽一
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.2000, no.53, pp.46-55,246, 2000-12-20 (Released:2009-01-15)
参考文献数
4

Sous la Constitution de 1946, le pouvoir judiciaire bénéficie du statut de l'autonomie presque parfaite à l'égard des autres organes de l'Etat. Quant au barreau, il a obtenu une autonomie beaucoup plus élargie qu'avant la guerre et son statut a été si considérablement valorisé qu'il est d'usage de recourrir, au sujet de grands problèmes juridiques et judiciaires, à la concertation de trois organes de profession légale: Cour suprême, Ministère de justice et Confédération japonaise des barreau. En ce sens, on peut parler de la justice en tant que corps. Or, des promoteurs et partisans de la "Réforme judiciaire" en préparation exigent, du tribunal ainsi que du barreau, "plus d'ouverture" au bénéfice des justiciables. Cette exigence puise sa propre légitimité finalement dans deux notions-clé: logique du marché au profit des consomateurs de la justice, et responsabilité devant la nation en tant que souverain.Quel choix peut-on imaginer en face de cette exigence? L'accepter pour renoncer à la caractéristique des professions légales en tant que corps, ou la refuser pour défendre de ce dernier? Il faudrait, de toute facon, savoir la signification que chaque coix pourrait avoir pour l'avenir du constitutionnalisme et de l'Etat de droit.