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

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

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

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

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

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

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

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

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

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.113-123, 2006-10-30 (Released:2010-02-15)

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

八島 隆之

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.125-134,196, 2006-10-30 (Released:2010-02-15)

参考文献数

23

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The purpose of this paper is to offer a tentative plan on systems logically consistent with libertarianism that respects personal freedoms. The arguments start from proving the following thesis. Specifically, in terms of libertarianism, a deceased individual's assets become unowned property in a purely theoretical sense, and therefore, inheritance institutions are denied without contradicting the right of private property. Consequently, problems about the lives of the bereaved arise from this thesis. In this paper, three systems that satisfy both avoidance of the bereaved problems and the position of the above-mentioned purely theoretical libertarianism are drawn. First, in the case of denying inheritance institutions, how to manage the lives of the bereaved becomes a problem if the household economy has depended on the deceased. In order to solve this problem, necessity of “the state debt system” for the bereaved to buy the deceased's assets is pointed out. Second, because the time of death between a husband and a wife usually differs, special consideration is needed with regard to the spouse who is one of the bereaved. Therefore, by thinking of family institutions based on a legal system using the analogy of general partner-ships, “a married couple organization theory” is developed. In this theory, the income of the couple who have chosen legal marriage automatically belongs to the income earner and his/her spouse at a rate of one-to-one. Third, in the case of children, even if we accept the thesis of self-ownership, children cannot usually work. Thus, children may be deprived of various freedoms. In order to solve this problem, necessity of “the independence reserve system” by which a state sets aside a constant sum from individuals' births to a certain time and pays it at the term end is proposed.

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.

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

伊藤 泰

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.163-171,199, 2005-09-30 (Released:2008-11-17)

参考文献数

7

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The two concepts of “right” and “good” have an important role in the theories of justice, including Rawls's liberal theory and the theories of his opponents such as libertarians and perfectionists. Even though they have different standpoints these scholars treat the two concepts similarly; in their arguments they unanimously presuppose the sole idea of “right”. They argue namely that though their concept of “good” they pursue are different from each other, all citizens in a society would accept the same “right” as the basic condition of their coexistence. Based upon this presumption, these scholars search the idea of “right” through theoretical or historical reflection. Recently, however, scholars such as Chantal Mouffe, James Bohman and Jeremy Waldron have different arguments: they argue that it is impossible for the citizens to come up with the same idea of “right”, as there are a number of “right” competing against each other, just like there are various kinds of “good”. According to these scholars, in order to avoid a totalitarian simplification, the modern democratic society should not deny this pluralistic structure. This paper examines the latter theory focusing on its implication to the theory of justice. The following two points are stressed among others: first, this theory will help our understanding of the pluralistic character of “right” in a democratic society, and second, this theory will offer us a new perspective for handling the problems such as (a) the neutrality of the state, and (b) the priority between “good” and “right”.

著者

山本 陽一

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.2004, pp.181-188,198, 2005-09-30 (Released:2008-11-17)

参考文献数

16

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Professor Tierney points out the significance of the permissive natural law theory, which is identified as the main stream among rights theories since the 12 th century. On the one hand, the so-called modern natural law theory, one of whose exponents is obviously Thomas Hobbes, insists on the superiority of natural right over natural law. On the other hand, the permissive natural law theory makes both concepts of natural right and natural law combined mutually with each other. According to Professor Tierney, the latter type of natural law theory should be regarded much more important than the former type of natural law. While the permissive natural law theory has been applied in the course of history, the community and its members have been brought into a kind of association that produces something new in the world. We can see such cases in the constitutionalism of the Conciliar Movement in the 15 th century and also in the ideal of religious freedom in the 17 th century. Both of these grew up within the framework of the permissive natural law theory. This theory is one of the elements that mobilized the community and its people for the development of constitutional government. His analysis of rights, however, never told us how conflicts were resolved among people before canonists in 12th century Europe contrived the rights theories. In pre-modern societies people had appealed to various ways of ordeal. Adam Smith, a natural law philosopher, worked out the mechanism of the historical development of modern society. He recognized the difference between the judicial procedure of modern society and the ordeal of pre-modern society. Although he sometimes seemed too modern to understand enough about ordeals, Smith never lost sight of the importance of the problem. I think that it is suitable to start from his insight if we are to argue sufficiently for natural law theories.

著者

長谷川 晃

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.18-29,199, 2006-10-30 (Released:2010-02-15)

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In this essay, I wish to explore the key elements of the idea of the rule of law in the history of Anglo-Saxon legal thought. My exploration, though sketchy, is with the perspective that the significant core of the idea of the rule of law in a historical context embraces us still today, and that its strands are grasped as a chain novel of the normative tradition of the rule of law we are required to succeed in current contexts. Based on this perspective, I analyze the various elements of the idea of the rule of law, particularly in the legal thoughts of British or American thinkers from 17th century to modern days. The place of the rule of law is recognized as an important component of constitutional justice that gives the basis of legal system; its key elements are grasped as strongly connected to a cluster of moral principles such as equal liberty for all, equal participation in democratic deliberation, and public reason. And the various strands of the thoughts of thinkers in law leading to these elements are traced in the history of legal thought mentioned above. In developing this kind of understanding, I claim that the key elements of the idea of the rule of law constitute the substantive texture or the multidimensional layers of the idea of the rule of law, and that we may utilize it as the resource for a further weaving of the web of legal rules and principles to pursue the realization of just society.

著者

深田 三徳

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.1-5,200, 2006-10-30 (Released:2010-02-15)

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The Annual Meeting of Legal Philosophy 2005 was held in NAGOYA on November12-13, 2005, under the auspice of Japan Association of Legal Philosophy (JALP). Its general theme was “The Rule of Law in Contemporary Japanese Society-Ideal, Reality and Perspective”. In Japan, “the rule of law” has been emphasized as a basic ideal for the recent judicial reform. In this meeting, the various problems about the ideals, tasks and realities etc. of the rule of law (or Rechtsstaat) in contemporary Japanese society were discussed from the viewpoints of legal philosophy and public law. Six legal philosophers and three public law scholars gave reports and discussed these problems.

著者

土井 真一

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.30-41,199, 2006-10-30 (Released:2010-02-15)

参考文献数

17

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In this article, the difference between the Recthsstaat principle and rule of law is clarified through analyses of the administrative and judicial law-making processes. Based on such analyses, pros and cons of the Rechtsstaat and rule of law are compared, and the conclusion is drawn that a way to unite the two law-making processes to work together in a balanced manner should be sought, and that reinforcement of the judicial law-making process is indispensable for rooting the rule of law in the Japanese society.