2001 Fiscal Year Final Research Report Summary
The Reformation of the Judicial System and Its Constitutional Perspective
| Project/Area Number |
12620023
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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 |
Public law
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| Research Institution | HIROSHIMA UNIVERSITY |
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Principal Investigator |
SAKAMOTO Masanari Hiroshima U., Dept. of Law, Professor, 法学部, 教授 (00033746)
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| Project Period (FY) |
2000 – 2001
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| Keywords | Rule of Law / jury system / Reformation of the judicial system / 陪審員 / 裁判員制 / 法科大学院 |
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| Research Abstract |
The Reformation of the judicial system is now proceeding in Japan. It's aim is to realize the idea of the "rule of law. " However, the real meaning of the "rule of law" is hardly understood. The rule of law is a historic ideal, and appeals to the rule of law remains rhetorically powerful. Yet the precise meaning of the rule of law is perhaps less clear than before. Many invocations are entirely conclusory and some appear mutually inconsistent
Some have traced the modern ideal to Aristotle, who equated the concept with the reason. This conception has had the great influence for a long time. In Japan, too. I call this point of view "substantive approach." This view is really coclusory, in fact, only the cause of controversy.
In contrast to the substantive approach, my thesis supports the formalistic, which grapes that the meaning of the rule of law should be clear, knowable in advance of its application.
The judicial system should be an apparatus to realize the formal justice. So, the system should be remote from the democratic political process. The idea of democracy and judicial system should be independent each other. From this point of view, the jury system is without no doubt.
"Sihouseido Kaikaku Singikai" (the Committee for the reformation of the judicial system) preferred "Saibaninn system" to the jury system. This choice is very understandable to me.
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