Comparative study on the theory of the civil society and the welfare state in civil law

2007 Fiscal Year Final Research Report Summary

• Project/Area Number: 17530073
• Research Category: Grant-in-Aid for Scientific Research (C)
• Allocation Type: Single-year Grants
• Section: 一般
• Research Field: Civil law
• Research Institution: Waseda University
• Principal Investigator: UCHIDA Katsuichi Waseda University, Faculty of International Liberal Studies, Professor (10063794)
• Project Period (FY): 2005 – 2007
• Keywords: civil law / welfare state / social rights

Research Abstract

Civil law presupposes the civil society which is based on the civil liberty, freedom and equality, and at the same time, forms the foundation of market economy system which is based on the protection of private property and respect for the freedom of contract.
Since the end of world war second, the political objective of both Western European countries and Japan has been an accomplishment of the welfare society although the degree of realization may differ from country to country. Japanese civil law theory during the early post war period, concentrated on the legal problems of the abolishment of semi-feudalistic employment relationship in labor relation, on agrarian tenants and right to commons in rural society, and on landlord and tenants in urban cities. Civil lawyers in Japan at that time wanted to modernize Japanese society, and to achieve a realization of civil liberty and equality. A comparison of the civil right, or law and the social right, or law became a main theme of discussi on. They supported demands and movements of citizens for the protection of freedom and equality, and intended to establish legal theory for the advancement of civil and welfare society.
By the end of 1960's, most of western countries and Japan accomplished the idea of welfare society, however, during the 1970's, owing to government expenditure cuts, the welfare state programs started to decline. During the 1990's, because of the globalization of economy, there arises a necessity to reorganize and reconstruct the welfare state.
In the fields of political theory and sociology, instead of the idea of unification of national, new ideas, such as coexistence and solidarity were proposed, concepts of a social exclusion and an inclusion were used, in order to form the theory of citizenship.
In recent days, however, most of civil law theorists concentrated to establish legal rules for the promotion of economic activities. They mainly discussed on the question of the formulation of legal infrastructure for market economy system. Then, they emphasized self decision and self responsibility. The legal theory which tried to encompass welfare elements into civil law and to achieve social justice and equality seemed to disappeared from the main stream of civil law.
In this research, based on recent developments in political theory and sociology, the investigator intends to reconstruct civil law theory to achieve civil society which includes welfare elements into civil law, examines the history of post war civil law theory and tries to analyze theoretical structure of welfare orientated civil law theory.