法による社会変動 : 日本的な「法」秩序の問題性
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概要
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Modern law is special form for establishing social order, in which, the constituent members, on an equal footing, make decisions through their rational dialogue and thereby check the arbitrary exercise of power. The use of law as an instrument for making social change is possible only in such societies as to accept the above-mentioned order-establishing form as right one. Viewed from the this standpoint, Japanese society is not fully equipped with the necessary conditions for making social change by law. For, in spite of its apparent constitutionalism, it is often observed, not only in the effectuation but also in the legislation, to "bypass the law", as shown by "Ichibatsu-Hyakkai" and "Gyosei-Shido", the tendencies to make the content of the law as simple as possible and to delegate the details to the administration, and so on. As factors explaning this phenomenon, in addition to the efficiency in realizing policies from the viewpoint of the political elites, we can list the traditional cultural ones, such as the authoritative charactor of Japanese society pointed out by R.Benedict, the prevailing precaution against making social order by general and abstract rule, and so on. One may appreciate this bypassing process as a source of the vitality of Japanese society. However, as the society becomes more matured, it is highly probable that the above-mentioned process becomes less workable because of the overload, the vague coercion implicit in the process less tolerated, and the necessary conditions for the social change by law more prepared.
- 社会・経済システム学会の論文
- 1990-10-25