2001 Fiscal Year Final Research Report Summary
Comparative Culture and Historical Study on Anti-legal Social Order in Russia
| Project/Area Number |
12620003
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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 |
Fundamental law
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| Research Institution | Shizuoka University |
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Principal Investigator |
OH'E Taiichiro Shizuoka univ., Dep. of SS and H. Professor, 人文学部, 教授 (00097221)
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| Project Period (FY) |
2000 – 2001
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| Keywords | legal culture / anti-legal social order / non-droit / Russia / 慣習法 |
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| Research Abstract |
1. Discovering "anti-legal" social order in Russia
In the West, where "Positivierung des Rechts" (N. Luhmann) had been acomplished until the end of the nineteenth century, jurists-comparatists, for example R. David, have developed a tendency to regard social sphere, which is not regulated by positive law, as sphere of customary "law". However there was neither positive law nor customary law, but "pre-legal" or "anti-legal" order, i.e. social order formed by a kind of relative situation ethics, in pesant communities of the nineteenth century Russia. This "anti-legal" order became cinstitute a basic component of socio-political, or so-called "legal" order of the soviet socalism.
The problem of non-legal order first was mentioned by J. Carbonnier and Ichiro Kitamura with the term "non-droit".
2. Overcoming the M. Weber's sociology of law
M. Weber in his "Sociology of Law" dealed "anti-legal" social order in russian pesant communities as "status law" (Sonderrecht). Weber's sociology of law nowadays may be criticized from the viewpoint of methodology of law as a kind of "reversed orientalism".
3. Discovery of "anti-legal" Russia by J.-J. Roussseau
Rousseau in his "Socal Contract" wrote : "Russia shall never be civilized" (Book II ch.8).
His argument may be newly interpreted from the viewpoint of avove-mentioned "anti-legal" social order in Russia.
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