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

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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

古川 誠

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.80-93, 2001-03-30 (Released:2009-01-15)

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.

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

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

古川 誠

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.80-93, 2001

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

五十嵐 二葉

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.1994, no.46, pp.222-228, 1994-04-30 (Released:2009-01-15)

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, 2002-09-30 (Released:2009-01-15)

参考文献数

42

---

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.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 ab initio" 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".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

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

波平 恵美子

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.2005, no.62, pp.19-30,189, 2005-03-30 (Released:2011-04-13)

参考文献数

13

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Since the Japanese nation state started in 1868, there have been differences between customs among the Japanese people and legal institutions over 'approval' of death, treatment of the remains and worship of the dead. Although the nation and the people have compromised the differences, from now on the legal institutions have to be more regulated because of the thorough changes of family, community, work environment and etc..The differences have been found in three phases of death, i. e., (1) 'approval' of death, (2) treatment of the remains and (3) worship of the dead which have been embedded the traditional family system, 'ie'.On the approval of death the Meiji government made the regulation in which a dead body should be diagnosed by modern medical doctors though all diagnoses could not be done because of the shortage of doctors. In the process of modernization for one century the regulation had been realized and the difference has disappeared. Another big difference occurred in the dispute about cadaver organ transplantation which accompanies a diagnoses of 'brain death'. As a compromise of the long time dispute there are legally two kinds of death, i.e., 'brain death' and 'heart death'.On the treatment of the remains the big difference was formed in the military system. In the pre-war system the remains and spirits of dead soldiers belonged to the government, and the rights of the soldiers' families were secondary. On the third phase of death, worship of the dead, the spirits of dead soldiers were deified in Yasukuni-jinja, a Shinto shrine though most Japanese dead spirits were worshipped in Buddhism.Accompanied with globalization of economic systems Japanese social structure is basically changing which certainly brings changes of the Japanese people's custom over death. Now the regulation of the matter becomes much more necessary than before.

著者

山崎 真秀

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.1966, no.18, pp.51-85,226, 1966-04-20 (Released:2009-04-03)

参考文献数

57

---

After the war, Japanese universities were reorganized into an institution not only for prosecuting academic researches as before but also for giving the people higher education in order to bring up “citizens”, and the number of universities has remarkably increased as compared with prewar days. In particular, recent economic development of our country has brought the growing attention of the people to university and the growing number of high school graduates who go on to universities. This tendency is also under the influence of the constitutional guarantee of the right to receive education. Likewise, the government has adopted, as one of its main policies, the policy of promoting the scientific technique and cultivating the people's ability, so that the problems of university system and education have often aroused public attention and discussion. Under such social condition, a matter which is always and hotly discussed is “university autonomy”.“University autonomy” in Japan had developed as a “custom” at the prewar Imperial Universities, the basic idea of which gave the faculty meeting an autonomy as to its human affairs, so as to maintain freedom of research. But after the Taisho era, when reformative thoughts such as socialism developed, the government authority hand in hand with the militarists exerted pressure upon the thoughts and opinions of progressive scholars, and by so doing frequently violated “university autonomy” as well as “academic freedom”.Through such experience before the war, we acquired after the war the constitutional guarantee of “academic freedom” and legal guarantee for the university's control over the human affairs of its teaching staff. However, “university autonomy” remains to be and is prevailingly considered to be a “custom” which has been practiced from the prewar days.Now, what is the reason why many troubles have happened in succession over this “university autonomy”, in spite of the constitutional guarantee of “academic freedom” and partial legal guarantee of “university autonomy”? It is worthy of discussion. Although many reasons may be pointed out, the author thinks the main reason may be found in the fact that the “university autonomy” has seldom become an object of scientific study because it has been a “custom” in the exact meaning, and that we have lacked in historical studying about the “Imperial Universities” which established the “custom”.On this hypothesis, the author discussed the development of the thought and custom of “university autonomy” in Japan before the war and the historical function of the Imperial Universities as the source of such thought and custom. The summary of the article is as follows.Section I. To make out the meaning and the background of the subject, the author explains the transition from the constitution and the underlying principle of it under the prewar Meiji Constitution to those under the postwar Constitution of Japan, and the difference of the constitutional guarantee and treatment of “academic freedom” and “university autonomy” under those two Constitutions.Section II. The birth of the University of Tokyo as the first modern university in Japan; its reorganization into the “Imperial University” by the first Education Minister, Arinori Mori, in 1886 when the Ordinance of Imperial University and other school ordinances were framed; the process in which this “Tokyo Imperial University” came to be established as a model to subsequent Japanese universities and university institution; these matters are sketched.

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

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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.

著者

瀬川 信久

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.52, pp.219-223, 2000-03-20 (Released:2009-01-15)

著者

古川 誠

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.80-93, 2001

著者

浅野 智彦

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.28-42,274, 2006-03-30 (Released:2012-06-20)

参考文献数

51

---

In this paper, I will examine Kenneth Gergen's self-narrative theory and try to make clear what differences there are between that theory and modernistic view of self. According to his theory, self is constructed as a narrative or story within or through various kinds of social interaction. That is a narrative about his/her own life in the past and future prospective. That is, any self-narrative can be characterized by the following three features:1) Various events in his/her life are chosen and structured by him/herself (reflexive)2) This structuring or storying depends on temporary sequence (diachronic)3) That self-narrative is always told to others (relational)Therefore in the self-narrative view self is understood to be more reflexive, more diachronic and more relational than a modernistic view has supposed it to be.This view does not make any difference as long as people believe in a modern story about 'subject', which is told about mechanical/synchronic/individual self. In 'postmodern' societies, however, it is gradually considered to be of less advantage than the narrative view of self, that is, a story about self told from a narrative perspective. It is more advantageous especially in those two respects as follow:1) Relational understanding of self2) Access to uniqueness or singularity of each individualBut, nevertheless, it is difficult to reject the concept of 'subject' completely because we need that concept in order to attribute responsibility to an agency of various acts. Narrative theory of self faces difficulty in this regard. On the one hand, relational view tends to dissolve the concept of 'responsibility' itself because 'responsibility' can be dispersed into infinite social relations in this view. On the other hand, any kind of agency cannot be identified because uniqueness or singularity can be grasped only negatively in self-narrative theory.

著者

佐藤 俊樹

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.7-21,247, 2001-09-30 (Released:2009-01-15)

参考文献数

9

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The various reformations of 90's Japan are often summarized as "From equality of result to equality of opportunity". However, the cause and implication of this change are not sufficiently made clear. On statistical data, the improvement of equality, both of result and of opportunity, has been stagnant since 80's. So the reformation in 90's was not caused by excess of the equality of result, but this stagnation itself caused the change of the principle of equality. In this paper, with re-examination of the concept of "opportunity", we show how this change is related to the new phase of 90's Japan, such as stagnation of equalization, sustainable society, and privatization.