著者

愛敬 浩二

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.2004, pp.76-87,203, 2005-09-30 (Released:2008-11-17)

参考文献数

33

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Libertarianism is not so popular among the constitutional lawyers in Japan. There are some reasons for that situation, but one of the most important reasons is that Japanese Constitution is, both in content and in its historical background, not suitable for the ideology of libertarianism. So under the constitution like that, libertarianism could hardly prevail, and there is no need for constitutional lawyers to take it seriously. But this story is too simple. If libertarianism is not the vindication of “laissez-faire” capitalism, but the diehard claim for liberty of private life of individuals, then constitutional lawyers should not make light of the critical stance of libertarians to the paternalistic regulation of the government. Especially in Japan, constitutional theory of “double standard dependent on the aim of regulation” allows the government very wide range of paternalistic regulation on economic freedom. Japanese constitutional lawyers could learn much from the libertarian criticism of that theory. But the problem of libertarian criticism is that they don't pay due attention to democracy. So taking libertarianism more seriously, we, Japanese constitutional lawyers, should come to think much about democracy, and I think it's good for us.