ヴィクトリア法文化の比較史的考察-19世紀後半期「近代法学」の実相と変容の研究

2000 Fiscal Year Final Research Report Summary

• Project/Area Number: 10620014
• Research Category: Grant-in-Aid for Scientific Research (C)
• Allocation Type: Single-year Grants
• Section: 一般
• Research Field: Fundamental law
• Research Institution: Waseda University
• Principal Investigator: SASAKURA Hideo Waseda University, School of Law, Professor, 法学部, 教授 (10009839)
• Project Period (FY): 1998 – 2000
• Keywords: right of resistance / natural law / European legal science / fiction / cultural history / law and moral / politics and moral / Carl Schmitt

Research Abstract

The aim of this research is to properly place the European legal science of the late 19th century in the context of the contemporary cultural history. Based on my three years' research, I have written five essays concerning the main problems of the modern legal science. I shall continue to write further essays on the subject and summarize them to portrait the cultural background of legal science. Here I'll comment on the first three essays :
In my first essay on the right of resistance, I have first examined the previous theories. Arriving at the conclusion that the past researches lack the proper typology of the resistance-cases, I proposed to distinguish among others the positive law elements and the natural law elements on the subject in my own way.
The second essay is on the fiction in law. In this essay I first examined the discussion on fiction in legal science of the 19th century Germany. I then tried to define the roll of fiction in the cultural history in Europe.
The third essay is on the relation between Politics, Law and Moral. Based on the Cart Schmitt's theory of the concept of "the political", I examined the fundamental difference of the tripos. There are many works on the relation between Law and Moral, and Politics and Moral, but the description of the fundamental relation between the tripos has not been done so thoroughly as it is in my essay.