"Fairness" in the Legal Discourse

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  • 法的言説における「公正」
  • ホウテキ ゲンセツ ニ オケル コウセイ

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The modern legal sytem has been drawing its universal validity from the "general will" of the people who constitute the state. Within this legally constituted community the Law is supposed to be applied to every member equally by the universal standard. The modern man is a legal person, who has accepted and adapted to this universal validity.<br>However, in some of recent hard court cases about basic human rights such as the Hansen's disease litigation, it has been revealed that the will of the majority is not necessarily identical with the general will in the Rousseauist sense. Jean-Jacques Rousseau characterized the Law as the written expression of the General Will of the people, which transcends the particular wills of egoistic individuals. But Rousseau himself indicated in «Social Contract» that it is hard to find somebody inside the community who is authorized to represent the General Will in the form of the Law. Hannah Arendt and Jacques Derrida rediscovered this problematic about the fictiveness of the Law in the postmodernist context.<br>Many of contemporary philsosophers of law such as Habermas, Alexy or Shigeaki Tanaka have been arguing that the General Will will be gradually constructed through the fair legal procedure like the parliamentary legislation or the court processes. However, it is not clear how and from whose perspective the concept of "fairness" is constituted. Those who are playing the game according to "their" own rules might not recognize "our" fairness. John Rawls has been trying to reconstruct the "fairness" through the representational device of "the veil of ignorance".<br>There is another approach to this fairness problem. Some theoreticians have been proposing the hypothesis of the "hermeneutical community", to put forward the validity of community-based local norms as the basis of our actual legal system. This model is expected to replace the classical model of the social contract. Yet, if this approach were brought to extremes, it might come close to premodern communitarian thought. It is now required to conceive a new legal discourse in which the fairness for Others could be properly reserved.

Journal

  • The Sociology of Law

    The Sociology of Law 2002 (57), 45-61,258, 2002

    The Japanese Association of Sociology of Law

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