著者

石黒 太

出版者

日本法哲学会

雑誌

法哲学年報 (ISSN:03872890)

巻号頁・発行日

vol.2006, pp.190-197,260, 2007-10-30 (Released:2010-12-16)

参考文献数

13

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In this paper, I try to articulate the core of John Rawls's theoretical shift from A Theory of Justice to Political Liberalism by examining his idea of democracy. Rawls's theory of justice gradually displays the democratic character. In Political Liberalism, he introduces the idea of Public Reason to his theory. This idea allegedly plays a significant role in Deliberative Democracy; therefore Rawls is regarded as one of the vanguards of Deliberative Democracy. But how can his liberal theory be consistent with his democratic shift? In my opinion, Political Liberalism differs from A Theory of Justice with regard to the place of democracy. In A Theory of Justice, democracy is derived from “Justice as Fairness”, whereas Political Liberalism presupposes the democratic arrangement, and “Justice as Fairness” is offered as the most reasonable conception of justice for our democratic society. Thus Political Liberalism admits that “Justice as Fairness” is but one example of a reasonable liberal conception of justice. This difference corresponds to shift in the way of justification of “Justice as Fairness”. In my point of view, “Justice as Fairness” in A Theory of Justice is justified through “Wide Reflective Equilibrium” (“in the case of one person”), whereas it is “Full Reflective Equilibrium” (“Wide and General Reflective Equilibrium”) that plays very important role in justification of “Justice as Fairness” in Political Liberalism. The latter Reflective Equilibrium includes dialogical moments. It is concluded that the place of democracy in his theory shifts with a change in the structure of the justification of “Justice as Fairness”, and his position in Political Liberalism can be interpreted as a dialogical approach to justice.

著者

稲田 恭明

出版者

日本法哲学会

雑誌

法哲学年報 (ISSN:03872890)

巻号頁・発行日

vol.2006, pp.198-207,259, 2007-10-30 (Released:2010-12-16)

参考文献数

10

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This essay aims to explore the scope and limits of cosmopolitan citizenship, the most ambitious of the various conceptions of new citizenship which try to reconstruct the traditional concept of citizenship which has been closely connected with that of nationality. This conception is an attempt at revitalizing democracy by diversifying citizenship in accordance with the multiplied political decision-making processes under the circumstance that the autonomous competences of nation states are undermined under the pressure of economic globalization, and the state sover-eignty is being diffused both upwards and downwards. After surveying several important theories on cosmopolitan citizenship, we will review several criticisms against them. Those criticisms are mainly concerned with the preconditions which enable democratic deliberation, and the idea of democratizing transnational institutions. This new conception of citizenship requires both institutional and ethical approaches.

著者

那須 耕介

出版者

日本法哲学会

雑誌

法哲学年報 (ISSN:03872890)

巻号頁・発行日

vol.2006, pp.57-75,266, 2007-10-30 (Released:2010-12-16)

参考文献数

21

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With the recent establishment of law school in Japan, the social role of legal education at the university is now becoming our focus of attention. As often pointed out, the legal education at the Faculty of Law has suffered by its serious contradictions and blindness. Especially, although most students do not choose to become lawyer, both method and content of education has been designed without proper consideration of their needs. Now that the locus of lawyer training is moved to the law schools, the serious doubt turned to the raison d'_??_tre of the Faculty of Law will not be able to be removed, as far as this state continues. After pointing out that the current state of legal education in Japan owes much to the particular circumstances of many late-started modernization countries (including Japan), this report proposes a new task that should be borne so that Faculty of Law may continue next future. My main point is that bringing up the mediator who fills the gap between lawyers (the specialist) and citizens (the nonspecialists) might be a new role of the Faculty of Law. These jobs are supposed to function as translators, critics or commentators who understand and evaluates the way of thinking and acting of legal specialists. If the faculty of law should live through current impasse, it has to upgrade its educational program so as to develop the cultural foundation of the rule of law.

著者

宮川 光治

出版者

日本法哲学会

雑誌

法哲学年報 (ISSN:03872890)

巻号頁・発行日

vol.2006, pp.76-83,265, 2007-10-30 (Released:2010-12-16)

参考文献数

13

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New legal training system was established at the request of society as a way to greatly improve legal profession both in quality and quantity. Law school is the core of such legal training process and the professional school which provides education specialized in training for the legal profession. By collecting diverse human resources and being exposed to the competition between law schools and the third party evaluation, law school tries to secure the quality of education and to achieve diversity and specialty. Unless national bar examination and apprenticeship training become bottlenecks, this system will, with efforts of faculties and students, fundamentally reform personal structure of Japanese justice system and gradually develop towards educational philosophy. Having been released from training for the legal profession, undergraduate law faculties became able to create a clear future vision. For development of the rule of law, it is necessary that citizens with basic legal knowledge have the increased presence in the society. Undergraduate law faculties should continue to play a role of nurturing such citizens. Liberal arts education will be conducted first, then various specialized professional education will be provided. It is expected that legal training is left with law school. Moreover, a careful examination may be required when considering training of specialists in fields adjoining law (so-called quasi-legal professionals) as an objective of undergraduate law faculties. It is important to take the future of continuing education into consideration when creating a vision of legal education at undergraduate.

著者

山田 八千子

出版者

日本法哲学会

雑誌

法哲学年報 (ISSN:03872890)

巻号頁・発行日

vol.2006, pp.84-99,265, 2007-10-30 (Released:2010-12-16)

参考文献数

26

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New legal training system was established at 2004. It organically connects legal education, the national bar examination and legal training as a “process”. Law school system would be its core. Law schools have to provide the education especially for training for the legal professions (judges, prosecutors, and lawyers). Therefore the education at law school should build a bridge between theoretical education and practical education. This paper would examine that the subject of legal philosophy plays an crucial role in such new legal training system. Legal education would be classified into two categories. These categories are the rationalistic theoretical education and the apprentice education as apprenticeship. In Japan the undergraduate schools and the postgraduate schools have given great deal of weight to the rationalistic theoretical education. But not only the theoretical education but also the apprentice education are indispensable for the education for legal professions.

著者

平野 仁彦

出版者

日本法哲学会

雑誌

法哲学年報 (ISSN:03872890)

巻号頁・発行日

vol.2006, pp.100-114,264, 2007-10-30 (Released:2010-12-16)

参考文献数

19

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In the Judicial Reform now in process in Japan, the new law school system models itself mainly on that of the United States. American law schools, based on accreditation by A. B. A. and A. A. L. S., have three characteristics in their curricula: stress on the first year courses of required subjects, providing various opportunities of practical or clinical education, and teaching a variety of basic and/or interdisciplinary studies of law. Jurisprudence or legal philosophy is among the last category. This paper, focusing on Jurisprudence, expounds the history of American legal education, its background ideas, and the major questions in the philosophical inquiry. It argues that despite a long history of apprenticeship the legal education made a drastic turn in the middle of the twentieth century into making much of the theoretical side of instruction partly because of the diversity of law and legal practice in America; that the fundamental idea in law is a limited sense of pragmatism which has been widely shared by various American legal theorists from Christopher Langdell to Ronald Dworkin and which underlies the idea of “Respon-sive Law” driving legal developments; and that theoretical inquiries that embody the idea of responsive law converge on the issues of legal justification as well as legal process in jurispru-dence, with considerations that we may call the “legal system balance” and the “legal principle balance”, which mold, as a result, particular features of the rule of law. Fostered through American legal education, the idea of responsive law is a vigorous source of legal practice in contemporary societies.

著者

亀本 洋

出版者

日本法哲学会

雑誌

法哲学年報 (ISSN:03872890)

巻号頁・発行日

vol.2006, pp.115-127,264, 2007-10-30 (Released:2010-12-16)

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Can education of legal philosophy be standardized? It seems extremely difficult to do so in view of liberal character of our discipline. It would be impossible to standardize philosophy of law in the same way of standardization in microeconomics, in which contents to be taught are completely standardized according to the level of students. Microeconomics for beginners is a subject without whose knowledge it is difficult for everyone to learn any other field in economics. It is in this sense the base of economics. Even civil law for beginners as what many jurists might think is the base of law in general is not standardized as elementary microeconomics, much less philosophy of law. But I believe that it is promising to standardize legal philosophy through teaching its history, that is, noteworthy doctrines of great philosophers of law and state, even if such standardization were different in kind from one in economics. Fortunately, there is a broad consensus among legal philosophers on which philosophers should be discussed. It is essential in each lecture to begin by taking up the simplest cases or problems and then to go to the more complex ones. We should learn this way of teaching from economics. But we do not have to commit to any economic thinking, though it is necessary to make use of it in some appropriate cases.

著者

嶋津 格

出版者

日本法哲学会

雑誌

法哲学年報 (ISSN:03872890)

巻号頁・発行日

vol.2006, pp.134-141,262, 2007-10-30 (Released:2010-12-16)

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The following are my comments on the presentations in our symposium on legal education. 1) Teaching law has been an effective route for Westernization in Japan. One of the marked features that graduates from a Law Department tend to acquire is their readiness to be accountable for social order. Compared with graduates from Literature or Economics, bachelors of law are likely to better manage norms in general. I believe recent sea change in legal education in Japan, which includes new establishment of about 70 law schools, will not affect the basic advantage of law education at undergraduate level. 2) When social norms are under perpetuated change lawyers are required to be more creative than regular study of law interpretation facilitates them to be. In such a circumstance Legal Philosophy, together with Sociology and Comparative Study of Law etc., will become all the more important. The fact that first rank law schools in the U. S. have rich courses in those theoretical studies of law is revealing this. 3) Professor Hagiwara talked about Japanese pseudo-rule of law. In that context too much focus on the Alternative Dispute Resolution and Restorative Justice might be harmful. In ADR, legal rules which are relevant to the concerned legal case will not be identified and confirmed. Otherwise, the rules found applicable to a new case today are likely to be applied to the similar cases in the future so that the number of cases which will come to the court for just resolution will be reduced greatly. In ADR, there is no guarantee that similar cases will be resolved similarly, which is one of requisites for the appearance of justice or that of rule of law. 4) The most fundamental thesis in my observation is that in the ideological phenomenon like law social belief in its existence which has something to do with people's sense of justice tends to make people behave accordingly so that the social reality in which we can talk on law meaningfully will come in place. In short the belief in law tends to fulfill itself. So, the main task of legal profession has been and still is to disseminate this belief.

著者

綾部 六郎

出版者

日本法哲学会

雑誌

法哲学年報 (ISSN:03872890)

巻号頁・発行日

vol.2005, pp.144-155,195, 2006-10-30 (Released:2010-02-15)

参考文献数

51

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In this paper, I am based on the knowledge, which social constructionism has brought, in order to point out the problems of a conventional idea of equality. On that occasion, I examine both a theory of equality in the Constitutional law and one in the philosophy of law and politics. In the former, I place importance on understanding the concept that a specific existence of sexuality such as homosexuality is an immutable characteristic. In the latter, I certify the liberalists' attempt to establish the appropriate criteria in relation to distribution of goods. So far, the consideration for diverse existences of sexuality cannot have been seen among these theories of equality. Therefore, I focus on the positionality the sexual minorities who cannot have recognized themselves as lesbian yet. Then, by showing the reality of such minorities that have not been covered by the legal discourses on equality, I expose the critical point of legal practices. In the end, I suggest that the daily interactions between sexual minorities and others are to be the first step to transform our society.

著者

森元 拓

出版者

日本法哲学会

雑誌

法哲学年報 (ISSN:03872890)

巻号頁・発行日

vol.2005, pp.165-175,194, 2006-10-30 (Released:2010-02-15)

参考文献数

13

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This paper will consider the legal validity of Georg Jellinek's legal theory. Jellinek's theory on legal order is as follows: in his theory, legal validity stems from “the legal belief” of the members of the legal community. “Legal belief” consists of two elements, one is the “normalizing function of facts, ” and the other “the factual function of norms.” The former element originates from extracting norms from facts, and the latter element originates from normative consciousness that transforms into a ‹normative› fact. These two elements are in a competitive relationship, which results in legal order always encompassing an opportunity to progress and continuously develop and evolve. However, this kind of theory on legal order contains two problems. First, there is a danger that this kind of theory on legal order to fall into a limitless relativism. This problem can be solved if and when the legal judgment of the legal community is based and rely on the unchanging and unique historical and cultural value of the community. Second, there is fear that this theory of legal order continuously enforce only the element of “normalizing function of facts, ” and that such a situation will result in a conservative society. To solve this problem, Jellinek emphasizes the element of “normalizing function of facts, ” while weakening the element of the other, thus, the concept of injustice (in German “unrecht”) and legal struggle becomes crucial in Jellinek's theory. Injustice (unrecht) is an illegal act committed on purpose, while legal struggle is a struggle to gain justice from the members of the legal community. Jellinek thought that the act of injustice (unrecht) and legal struggle will assure that the two elements will work competitively; therefore, insuring the progressiveness and continuous development of legal order.

著者

松島 裕一

出版者

日本法哲学会

雑誌

法哲学年報 (ISSN:03872890)

巻号頁・発行日

vol.2005, pp.176-184,193, 2006-10-30 (Released:2010-02-15)

参考文献数

15

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This article is aimed at clarifying how concepts and techniques of legal interpretation have developed in legal history by introducing “Recht als Wissenschaft” by Jan Schroder, a legal historian in Germany. His study is important for contemporary theory of legal interpretation, especially how he explains the concept of legal interpretation in three periods by showing its connection to the concept of law. According to Schröder, the three theories of legal interpretation from 1500 to 1850 can be characterized as follows: (1) From 1500 to 1650, legal interpretation was to pursue rational reason of law, for jurists considered law as God's commands or human rational commands. In this period, jurists were able to extend rational reason of law quite freely. So jurists were not aware of the difference between analogy and interpretation. (2) From 1650 to 1800, legal interpretation was to pursue actual legislator's intensions, for jurists considered (positive) law as mere commands of a sovereign. Positive law had nothing to do with rationality. In this period, jurists were able to go beyond the meanings of words by interpretation, but not legislator's intensions. (3) From 1800 to 1850, legal interpretation was to clarify the historical meanings of words by means of philology, for jurists (of the historical school) considered law as historical documents that a nation had produced over a long time. In this period, jurists could not go beyond the meanings of words by interpretation because interpretation was philological exegesis. Therefore, the concept of legal interpretation became the narrowest of the three periods. Historically, it is obviously that the theory of legal interpretation is strongly connected with the concept of law. To construct the best theory of legal interpretation today, we must always consider not only what interpretation is but also what law is.

著者

大塚 滋

出版者

日本法哲学会

雑誌

法哲学年報 (ISSN:03872890)

巻号頁・発行日

vol.2006, pp.1-3,268, 2007-10-30 (Released:2010-12-16)

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The 2006 annual meeting of JALP was held on 25-26 November at Aoyama Gakuin University, in Tokyo. Its general theme was “Legal Philosophy and Legal Education; in the Law School Era”. The concomitance of two types of organs for legal education in Japan from 2004 might throw us into disorder, but it might be a golden opportunity for us to reflect and reform the status quo of Japanese legal education systems in general and of the legal philosophy education in particular. This meeting was planned before the start of Japanese Law Schools, searching for our common measures to reform the education of the legal philosophy.

著者

大塚 滋

出版者

日本法哲学会

雑誌

法哲学年報 (ISSN:03872890)

巻号頁・発行日

vol.2006, pp.4-17,268, 2007-10-30 (Released:2010-12-16)

参考文献数

3

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Many Japanese Law Schools were established in 2004. The Aim of this paper is to assess their influences on the traditional system of the legal education in Japan, and to suggest what ought to be the contents of the legal education at faculties of law in Japan. Firstly, the author points out the abnormality that two different systems of legal education happened to exist. One is that of the Law Schools, the graduate schools specifically for legal professions, and the other is of the faculties of law, the undergraduate schools not directly for legal professions. Secondly, he overviews the ideas of Japanese Law Schools and their realities, and criticizes them from the viewpoints of the reform plans proposed by Jerome Frank and by Rudolf von Jhering. According to the author, our Law Schools are, more or less, becoming degraded into mere preparatory schools for the new Japanese Bar Examination, forgetting their ideal: the improvement of the quality of lawyers, and ignoring Jerome Frank's criticism of Langdellian case method in his “Courts on Trial” (1949), and Jhering's criticism of the “Begriffsjurisprudenz”, which consists in that of the traditional system of the legal education in Germany. Thirdly, he proposes the reform plan of the educational program at our faculties of law, in order to make them survive in the Law School Era. The plan says that their program have to be multiple, meeting the diverse needs of Japanese law students; for the majority of them it has to provide some subjects like “literacy for ordinary legal life”. Finally, he urges the persistence of our faculties of law and graduate schools of law in spite of having set up Law Schools, on the ground that they are indispensable for nurturing our successors -legal academicians and law teachers-, and for keeping and furthering the diversity of our studies in law.

著者

北村 隆憲

出版者

日本法哲学会

雑誌

法哲学年報 (ISSN:03872890)

巻号頁・発行日

vol.2006, pp.18-31,267, 2007-10-30 (Released:2010-12-16)

参考文献数

8

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This article reports some of the findings based on an empirical study conducted as to the actual situations in which “legal-philosophy” and its cognate classes are taught at law schools in Japan. The study consists of three modules; first, content analysis of the “syllabus” texts of the classes; second, interviews with law school students who attended those classes; and finally, questionnaire conducted for law-school professors in charge of the classes and their students.

著者

萩原 金美

出版者

日本法哲学会

雑誌

法哲学年報 (ISSN:03872890)

巻号頁・発行日

vol.2006, pp.32-43,267, 2007-10-30 (Released:2010-12-16)

参考文献数

8

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The Justice System Reform has introduced the “American Style” law school (graduate school) system while keeping with the existing faculties of law at undergraduate level. Its impact on legal education at the latter is apparently enormous but, strange to say, to this date this problem has never been seriously debated. It would appear to be an excessive dualistic structure in legal education; a hybrid or compromise of the American legal education system with that of the continental law countries. Then, in what way should legal education at undergraduate level be transformed? The answer or solution is not easy because the matter is closely related to manifold problems which go beyond education. I propose the main feature of faculties of law should transform into general arts education focused on law. In addition, sufficient practical vocational education for para-legals should be made available for students not aspiring to enter law school (probably they constitute the majority). I also mention something about the relationship of legal education in law schools and legal philosophy. While practice oriented education is emphasized in law schools, it is also vitally important for students to gain an insight into the fundamental problems of law and lawyers. In this regard, legal philosophy plays an important role. One of the present problems which require urgent philosophical thought is, in my view, ADR (Alternative Dispute Resolution). ADR is gaining popularity in many countries, including Japan. However, I have doubts as to whether ADR is really consistent with the rule of law. Is justice under ADR the same as that under judicial procedure? If it is not, how is it different and how is the difference justified? It is expected that legal philosophy will provide the correct answer to these questions, especially in this country where “quasi rule of law” dominates.

著者

仲正 昌樹

出版者

日本法哲学会

雑誌

法哲学年報 (ISSN:03872890)

巻号頁・発行日

vol.2006, pp.44-56,267, 2007-10-30 (Released:2010-12-16)

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I will present my personal view on legal education from the perspective of a semi-outsider, namely as the one, who did not study law as a student but is working actually as a professor in the faculty of law. The legal education in the faculty of law of Japanese universities has a very particular tradition, which was established in the imperial universities before the World War II. The objectives of the legal education in those imperial universities were to raise up legal elites who should play important roles in lawmaking process and lead the legal practice. However, as the number of law students increased drastically and the roles of the academics and the practi-tioners were separated after the war, the meaning of the legal education changed as well. Nevertheless, the professors of the faculty of law have been persisting in the traditional elite education system, which are causing enormous difficulties for normal students. There are standardized styles of textbooks, in which the key notions of the codes are exactly defined and explicated in the lexical order and accordingly the exemplary cases are introduced. Seemingly, students are supposed to learn the ideally constructed law system rather than actual legal conflicts. Professors of the faculty of law have been insisting this sort of systematized education would help students gain the comprehensive view of the living law. But this argument has been getting invalid since the introduction of the Law School system. The students who really want to be lawyers are studying at law schools, in which different methods of education are adopted. Then, what are the objectives of the legal education in the remaining faculty of law? Is it still necessary to present concurring academic doctrines in the textbooks, although most of students are not willing to be jurists? I propose that students of the faculty of law should learn more of actual legal conflicts from the perspective of a ‹client›. It often happens that jurists will not respond to the requests of their clients, suggesting difficulties of actual cases. Sometimes sentences of the court deviate from the literal interpretation of the written code. It should be useful to learn such ambiguities and irregularities of law practice that every citizen may face when they seriously seek the course of justice. There should be classes of legal communication from the viewpoint of clients in the curriculum of the faculty of law.

著者

服部 高宏

出版者

日本法哲学会

雑誌

法哲学年報 (ISSN:03872890)

巻号頁・発行日

vol.2005, pp.71-81,197, 2006-10-30 (Released:2010-02-15)

参考文献数

6

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How has the principle of Rechtsstaat developed in Germany? In this report I want to try to grasp how this principle has been situated in each society and situation and how its meaning has changed in its history by arresting development of various ideas of nations relating to that of Rechtsstaat. I pay my attention to what kind of significance the notion of stability has in the transition of the task of nations and to how important the notion of subsidiarity is as a principle of social ordering. I survey the meaning of principle of Rechtsstaat in German constitutional theories, situate the principle of Rechtsstaat in the developing process of the task of nations depending on the view of F.-X. Kaufmann, investigate the significance of subidiarity as a principle of social ordering, and lastly add some comments about the contemporary values of principle of Recthsstaat in connection with the progress of legalization and the existence of federal constitutional court in Germany.

著者

石前 禎幸

出版者

日本法哲学会

雑誌

法哲学年報 (ISSN:03872890)

巻号頁・発行日

vol.2005, pp.82-93,197, 2006-10-30 (Released:2010-02-15)

参考文献数

14

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We must not forget that there are negative aspects in the idea of “rule of law.” Justice demands individual considerations as well as general fairness, and the universal character of justice sometimes opposes to individual considerations. It means that the idea of “rule of law” may become an obstacle to social changes and progress. This tendency has been discussed repeatedly. In late years, Critical Legal Studies (CLS) and post-modern legal theories that showed arising in 1980's pointed out the negative side in the idea of “rule of law.” We may think CLS to have criticized “rule of law” from a point of view of “indeterminacy of law”. In this article, I review the indeterminacy thesis brought by legal realism and CLS, and make a short discussion about post-modern topics such as Wittgensteinean paradox, reader-response theory and decon-structionist approaches to law.

著者

高橋 和之

出版者

日本法哲学会

雑誌

法哲学年報 (ISSN:03872890)

巻号頁・発行日

vol.2005, pp.94-105,197, 2006-10-30 (Released:2010-02-15)

参考文献数

10

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The idea of the rule of law is institutionalized and functions in different ways from country to country. The purpose of this report is to set forth a framework for comparing the different ways each state has designed the institutionalization and function of the rule of law understood as a constitutional principle. The rule of law as a constitutional principle orders the ruler, not the ruled or people without differenciation of the ruler and the ruled, to comply with law, the costitutional law in modern sense being a scheme to protect the ruled from the ruler. What interests constitutional scholars most should be the way and the extent to which the rule of law contributes to the guarantee of the fundamental values of constitutional law. As the rule of law is a project to subject politics to law, the rule of law thinking presupposes the conceptual separation of political and legal spheres. Only when political activites can be translated into and captured by legal concepts can politics be controled by law. Controle reflects equlibrium of political forces, and in the final analysis the rule of law is a project to establish balance of powers. We can distinguish two models of the rule of law: that of constitutional monarchy represented by British rule of law and German Rechtsstaat and that of constitutional democracy represented by American rule of law and french Etat legal. By combining with this distinction the difference between common law and civil law traditions we can decribe the disinguishing features of the rule of law of those states.

著者

田中 成明

出版者

日本法哲学会

雑誌

法哲学年報 (ISSN:03872890)

巻号頁・発行日

vol.2005, pp.106-112,196, 2006-10-30 (Released:2010-02-15)

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This paper comments on discussions about the rule of law (and/or Rechtsstaat) that were presented by five legal philosophers and three public law scholars at the Annual Meeting of Legal Philosophy 2005. The focal point of comments is how to deepen our understanding of institutional aspects that are designed to realize effectiuely value-oriented aims of the rule of law through facilitating discussions among competing conceptions of the rule of law. Commentator's own view on the rule of law is summarized in the part 1. After examined views of each reports in their mutual relationship, the paper refers to future tasks of discussions about the rule of law in Japan, with special regards to the significance of the Justice System Reform for the rule of law.