地域立法自治権の可能性と限界(I <特集1>転機にある教育政策)

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  • The Possibilities and Limitations of Legislative Local Autonomy(I <Special Papers 1>Education policy at the turning point)
  • 地域立法自治権の可能性と限界
  • チイキ リッポウ ジチケン ノ カノウセイ ト ゲンカイ

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This paper examines the possibilities and limitations of legislative local autonomy, part of the local autonomy that the Constitution guarantees. With advent of questions about the relationship between law and regulation in the field of pollution administrative, discussions have been continued in exploring the way to overcome what is traditionally called "law preemption theory". As well as accumulation of leading cases on the matter, a lot of regulations have been enacted on a local government level. In contrast to those efforts, the Supreme Court has ruled that the relationship of the law and regulation is determined substantially by taking into consideration the meaning, purpose, content, and effect of the law. This framework of judgment, however, is too general and abstract; therefore, it is hard to establish the criteria to be applied in individual administrative cases. In order to expand rights to enact regulations by reviewing obligations by the law, then, "rights to overwrite the law by regulation" has been widely discussed, but it seems to have come down to "mandated ordinances of localities theory". Now the improvement of legislative local autonomy is expected, especially in the field of educational administration to explore theory and practice in individual administrative cases.

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