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
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
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
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.
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
高田 敏
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.1969, no.21, pp.50-82,218, 1969

Inhaltsübersicht<br>1. Die Fragestellung<br>a) Peitsche und Zuckerbrot.<br>b) Der Gegenstand dieses Aufsatzes.<br>2. Die Entstehung der Theorie der Leistungsverwaltung<br>a) Der Dualismus der Verwaltung im bürgerlich-liberalen Rechtsstaat: die hoheitliche Verwaltung und die fiskalische Verwaltung.-Die Teilung der hoheitlichen Verwaltung in die obrigkeitliche Verwaltung bzw. die Eingriffsverwaltung und die schlicht-hoheitliche Verwaltung unter der Weimarer Verfassung.<br>b) Ernst Forsthoffs "Die Verwaltung als Leistungstäger" vom 1938.<br>c) Die Problematik der Forsthoff'schen Theorie der Leistungsverwaltung.<br>3. Die Entwicklung der Theorien der Leistungsverwaltung nach dem 2. Weltkrieg<br>a) Die Wandlung der Forsthoff'schen Theorie der Leistungsverwaltung.<br>b) Der Begriff der Leistungsverwaltung.<br>c) Der Sozialstaatsgedanke als Grundlage der Theorie der Leistungsverwaltung.<br>4. Die Leistungen und die öffentliche Sicherheit<br>a) Die Leistungsverwaltung und die Sicherheitspolitik in einigen Sozialstaatstheorien.<br>b) Die Problematik der Theorie der Leistungsverwaltung. Die Rollen, die die Theorien der Leistungsverwaltung spielen.-Die Problematik des Begriffs der Leistungsverwaltung.-Die Probleme der Rechtsdogmatik um das sog. Leistungsverwaltungsrecht.
著者
木村 邦博
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.92-96,334, 1993

Students of "law and economics" adopt the rational choice approach. The approach contributes to giving an explanation of unintended consequences which result from aggregation of individuals' rational decisions or behaviors under the constraint of the law. However, it fails to explain why and how the law itself is established. Game theoretical models which formulate the problem of pollution caused by the use of metal-studded tires exemplify the possibility and the limit of the approach.
著者
久武 綾子
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.1964, no.16, pp.81-106,147, 1964

以上の調査結果は、<br>(1) 調査区は、いずれも職業別人口構成を異にするが、総括的にみると、推計学的に検定した結果も統計上の有為差は、一部の統計結果を除き、殆んど認められなかったので、本調査の地域差は期待に反し、顕著な差ではないことがわかった。<br>(2) 婚姻届出日と第一子出生日との隔たりについての統計結果から、妊娠または出産を契機として入籍するという一慣行、すなわち、事実婚より法律婚への転機の一原因が実証された。このことは、戦前は勿論、戦後も意外に多いことがわかった。<br>(3) 婚姻の届出が第一子の出生後、出生届の期間内の一四日までになされる率は、いずれの時代でも相当数を占め、最近でもこのような例は稀でないことがわかった。<br>(4) 婚姻成立後、九~一〇月で子の出生をみる傾向は、最近になってようやくあらわれた。<br>(5) 古い時代はとくに、現在でも内縁期間中の懐胎が相当多く、これは挙式後婚姻の届出がすぐに行なわれなかったためである。<br>(6) 挙式日と出生日との隔たりについての統計結果は、時代の推移にかかわらず一〇月にピークがみられる。<br>(7) 社会生活上、挙式は重大な規範であり、厳守されているが、その反面、制度としての婚姻の届出は、おくれがちであることが実証された。<br>(8) 婚姻の届出は、挙式後一ケ月までになされる率が、調査区および調査期間とは関係なく一番多かった。<br>(9) 以上、これらの調査結果から、婚姻にみられる慣習規範と、二、三の慣行が統計的に裏づけられた。<br>(10) 本調査により、大都市における婚姻と届出に対する一般市民の実態が明らかになったが、今後は、調査地を農村に求めてこれと比較するとともに、進んでは、届出制度そのものに対する法社会学的背景を探究するための若干の調査と考察を試みたいと思う。
著者
川人 博
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.62, pp.134-138,195, 2005-03-30 (Released:2011-04-13)
参考文献数
9

The term "karoshi" was first used by Dr. Tetsunojyo Uehara and others in the latter half of the 1970s. Thanks to the activities of the Karoshi Hotline since 1988, "karoshi" has become part of the Japanese language.Karoshi is defined as "death from overwork and stress". The phrase "suicide resulting from overwork, " as a form of karoshi, is now established in Japan as well. When reported overseas, the term "karoshi" is either left in the original Japanese as karoshi, or is translated into the phrase "death from overwork" and is regarded as a symbol of overworking Japanese society.Karoshi has great significance for the following two reasons: firstly, the word explains the social factor of "overwork and stress" that leads to death; and secondly, the word has an easily understandable meaning for the Japanese people. For these two reasons, karoshi has become a locomotive for the movement of social reform in Japan.
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

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.<br>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.<br>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.

1 0 0 0 OA 行政改革

著者
森田 朗
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.55, pp.71-85,248, 2001-09-30 (Released:2009-01-15)

Since mid 1990s Japan has been promoting a big scale reform of the basic governmental institutions. Transfer of functions to local goverments, deregulation, reshuffle of government ministries and financial structure reform are advancing and the civil service reform has just started. These reforms are to reform a govermental organization that has grown excessively large and rigid, and to realize a streamlined, efficient and transparent goverment that permits effective execution of important state functions. In this article, political or law-making process of two reforms are analyzed. One is the reinforcement of cabinet functions. In order for the Cabinet to conduct substantial policy discussions, and to function as the principal instrument for a top-down approach to the formation and execution of policy, it is necessary to reinforce the Cabinet functions and to strengthen the "leadershp of the Prime Minister" The second is the establishment of independent administrative corporations. Government organizations are criticized because of inefficiency, rigidity and a big financial deficit. So independent administrative corporations are established as a strong tool for increasing efficiency and improving the quality of administrative services.
著者
西尾 広毅
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.234-251,280, 2002

In this article, I analyze comparatively two litigation movements, Minoo <i>chukonhi</i> war memorial case and Osaka enthronement ceremony and <i>daijosai</i> Shinto ritual case, from the perspective of A. Melucci's theory of 'new socialmovement'. Through this comparative analysis, I clarify that a dynamism that generate in the tension between a formation of social movement identity and a conduct of lawsuit, impacts upon develop and decline of the movement as whole. On the one hand, when the litigation is conducted without taking into account on the moment of formation and/or affirmation of the collective identity, there is the risk that the collective identity, and therefore the movement as such, may collapse, even though some fruits are acquired through the litigation. On the other, when the lawsuit is conducted taking into account on the moment of formation and/or affirmation of the collective identity, there is a potential for generating new movements through legal technical refinements in that lawsuit, even if the lawsuit is end up with losing.
著者
松原 英世
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.67-81,254, 2006

This paper aims at bringing up a perspective to examine the relationship between policies and recognition of facts behind them. First, we will observe transformation of criminological thought and ways of dealing with crime, and confirm the correspondence, looking back to history of criminology (II). Then, we will explore what causes the transformation and how a certain policy is chosen (III). I will make the point through the work that ways of coping with crime and roles of punishment are influenced by our ways of thinking about crime and criminals rather than effectiveness of policies, and also that we should reconsider current policies for crime and how to use punishment in the historical context from this point of view.
著者
神長 百合子
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.2004, no.61, pp.147-165,218, 2004

This paper presents an analysis on the professional work and consciousness of the Japanese women lawyers who practice law in the metropolitan area of Tokyo. It is based on the research of women lawyers conducted in 1998 supported by Grant-in-Aid for Scientific Research of the Japan Society for the Promotion of Science.<br>The frame of the research is to see if the international trend of the female bar to commit to the women's cause, especially "Women's Rights, " or feminist perspectives has any effect on Japanese legal practice by women lawyers. My former research of 1991 (cf. Kaminaga & Westhoff, "Women Lawyers in Japan: Contradictory Factors in Status, " in Shultz & Shaw eds. Women in The World's Legal Profession, 2003) suggested that women lawyers held a very special position in Japanese society-a kind of limbo between the general low social status of Japanese women and the very elevated status of the elite profession of law. Following up this result in a larger scale with more sophisticated design, I conclude that the same picture still applied to Japanese women lawyers at the turn of the century. The status factors reflected in their everyday practice and their attitude toward the representation of women clients and the "Women's Rights" cause.
著者
坂元 真一
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.2002, no.57, pp.224-241,262, 2002

In 1940, Japan revised the Korean Civil Act, and mandatorily added "Japanese-style" surnames to all Koreans (so called "Renaming Policy in Korea"). At the same time, this Act allowed all Koreans to adopt a child who is not the member of the adoptive father's patrilineal clan. After liberation, all of such "non-customary" adoptions were invalidated retrospectively, and South Korean courts held this decision for more than 40 years. Nevertheless, in 1994, the Supreme Court of South Korea, overruling the precedents, declared that the "non-customary" adoptions done on the basis of 1939 Act were/are valid.<br>This paper reviews the appropriateness of this 1994 Supreme Court decision. To undertake this analysis, the logical relation between the "Japanese-style" surnames and the "non-customary" adoptions is mainly discussed. The first Korean Civil Code of 1960 allowed the "non-customary" adoption without forcing any "Japanese-style" surnames. This fact clearly proves that the "Japanese-style" surname is one thing: the "non-customary" adoption is another. Hence, even the former was declared "null and void <i>ab initio</i>" by the ordinance "Restoration of Korean Names" of 1946, the latter cannot be automatically invalidated. The "non-customary" adoptee based on the Act of 1939, however, had a right to succeed the adoptive father's "House", which was prohibited by the Korean Civil Code of 1960. The succession of the "House" by the adoptee of deferent patrilineal clan caused a serious "Japanization" to the legal identity of Korean customary "House".<br>In conclusion, the 1994 Supreme Court decision is proper, as far as the validity of the "non-customary" adoption on the base of the 1939 Revised Act. However, the right of the "non-customary" adoptee to succeed the adoptive father's "House" should be invalidated retrospectively, in the light of making a distinction between "modernization" and "Japanization" in the history of Korean Law and Society.
著者
日比野 勤
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.43-59,275, 2006

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.<br>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.