2007 Fiscal Year Final Research Report Summary
The judicial function of judicialethics and the application there of to the education and training of the legal profession
| Project/Area Number |
18330020
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| Research Category |
Grant-in-Aid for Scientific Research (B)
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| Allocation Type | Single-year Grants |
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| Section | 一般 |
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| Research Field |
New fields of law
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| Research Institution | Nagoya University |
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Principal Investigator |
MORIGIWA Yasutomo Nagoya University, Graduate School of law, Professor (40107488)
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| Co-Investigator(Kenkyū-buntansha) |
MATSUMOTO Tsuneo Hitotsubashi University, Graduate School of law, Professor (20127715)
HASEBE Yasuo The University of Tokyo, Graduate School of law and Political Science, Professor (80126143)
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| Project Period (FY) |
2006 – 2007
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| Keywords | judicial ethics / best practice / excelling interpretation of law / independence of the judiciary / impartiality / CSR / public / private dichotomy / the third generation of judicial ethics |
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| Research Abstract |
This project had two objectives. Firstly, to provide the theoretical grounds necessary far the legal ethics training of the legal profession at the law school by developing the foundations of such a theory thorough the study of the judicial function of legal ethics in action. Secondly, to feed back the fruits of the study to the field of legal theory, thus furnishing the material necessary for the developing of a new method of the study of law and accompanying theories.
Concerning the first objective, findings are published in the Hanrei Times vol.1251 (2007) and further findings were presented and discussed at the International Symposium on Judicial Ethics held on 1 December 2007, in Tokyo. At the symposium, the concept of <judicial ethics as best practice> was introduced, about which comments and discussion continue to flow in to the chief investigator, from judges and those responsible for teaching legal ethics in law schools in Japan.
As for the second objective, again, major finding
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s were presented in the above article and symposium. The main theme of the research was the comparative study of judicial ethics between France and Japan. The main message sent out was thus In order far the judiciary to properly function in a liberal democracy, freedom of legal interpretation secured through the independence of the judiciary is a prerequisite. In France, although the constitution of the state does not anticipate the type of independence fit far a judiciary of a liberal democracy, the judiciary is nevertheless independent enough to fulfill by and large the task of such a judiciary. What is it that enables the judge to avoid arbitrariness in the interpretation of law? What is it that allows for the preservation and enhancement of the credibility of the judiciary? The content of judicial ethics was analyzed in this context, In addition to the probable masons such as motivation to promotion inhibiting license, especially interpretations that tend to be overturned at the appellate level, the ethos the caps of the judiciary was introduced as another possible element The institutional, political conditions and the content of the ethos of such a judicial ethic were then proposed for critical analysis We believe that the fundamental characteristics of a viable judicial ethic in a liberal democracy can thus be established. If so, it would follow that the content and standard of acceptable and evening interpretation of law should be identified not only by the methods by which the judge finds the law, but also by the level of independence of the judiciary and the content of the ethics of the judge that filters out inference based on the wrong reasons Such an integrated view of legal interpretation would be necessary in future investigations of the subject We believe that such an institutional view would bring about a renovation of how we theorize about law and its interpretation. Less
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