1997 Fiscal Year Final Research Report Summary
A Basic Theory of Antimonopoly Law and Economic Law
| Project/Area Number |
07802005
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| Research Category |
Grant-in-Aid for Scientific Research (C)
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| Allocation Type | Single-year Grants |
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| Section | 一般 |
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| Research Field |
Social law
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| Research Institution | Waseda University (1997)
Shizuoka University (1995-1996) |
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Principal Investigator |
TSUCHIDA Kazuhiro Waseda University, Law School, Professor, 法学部, 教授 (60163820)
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| Project Period (FY) |
1995 – 1997
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| Keywords | Antimonopoly Law / Economic Law / Deregulation / Neo-Liberalism / Social Justice / Law & Economics / J.Rawls / R.A.Posner |
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| Research Abstract |
Theories in the field of Japanese anti-monopoly law or economic law in 1990s appear to have close relationships with the Neo-liberalistic theories in the United States. Chicago School of Antitrust Law is a typical Neo-liberalistic theory in America, which has an utilitarian basis that legality of a conduct is judged according to the increase or decrease of the consumers' surplus and the producers' surplus, and an inclination toward "universal commodification" that all things can and should be exchanged through the free market insofar as the seller and the buyer agree.
Themes for a countervailing alternative theory to examine are :
1) how limits of commodification should be set (limitation of the market boundary) and
2) how a theory of rights must be established against the utilitarian principle of wealth maximization (rights-theory based structuralization of the market connotation).
As to the boundary of the market, we can decide it according to M.J.Radin's theory of market-inalienability. As to the structuralization of the market connotation, we should learn from J.Rawls's theory of Justice and set the order of priority among people's requires. That is, it is necessary for a model of the legal structure corresponding to egalitarian market economy to set the order of priority among foundational rights to live or to life and health, property rights as human rights, medium-sized enterprises's property rights and monopoly property, in addition to an institutionalization of the Difference principle, that is an institutionalization of a system to distribute outcomes of natural human talents among competitors.
Many measures of deregulation in Japan should also be evaluated from the viewpoint of limitation of the market boundary and the structuralization of the market connotation.
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