現代日本における社会統制の「法化」「非=法化」 : 刑事法制への視座とその分析モデル (課題研究 社会統制と個人)
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概要
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This paper aims at examining how the Japanese system of criminal justice should be organized and operated, with special regard to the recent discussions about "legalization" and "delegalization". An inter-subjective perspective on legal dynamics emphasizes that citizens should respect each other as autonomous legal subjects who are capable of voluntarily utilizing legal standards and procedures to pursue their own conception of the good. An analysis of several intensive controversies that have developed over criminal justice suggests that a legalistic trend which advocates the purification of criminal procedure or imprisonment seems to be most appropriate to promote this perspective. However, two other instrumentalistic and paternalistic trends are also influential. The former emphasizes the importance of such public interests as crime prevention and protection of society, and the latter attaches great importance to the rehabilitation of the criminal or the protection of the delinquent. The relationships between these three trends are rather complicated: Cooperative on some issues, but antagonistic on others. Although the opinion which demands the effective realization of universalistic legalization has been growing in strength, managerial legalization has also been carried forward by the support of both instrumentalistic and paternalistic trends. Moreover, managerial legalization has begun to be carried out in a softer fashion through the informalistic incorporation of communal law. From the legal point of view, the author supports in principle the legalistic strategy to intensify universalistic legalization, and opposes the paternalistic strategy of delegalization, not to mention anti-legalization. However, the author also feels it necessary to reconsider from a detached viewpoint whether the legalistic strategy can adequately care for the criminal and afford them what they really need.
- 日本犯罪社会学会の論文