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笹原 和織

doi:10.11205/jalp.2008.0_156

There are many articles referring to L. Lessig and his regulation theory, especially his concept of 'architecture' also in Japan. But what is the architecture, not in cyber-space but in real-space, and where is his theory in the American legal thought arc obscure and ambiguous for us Japanese. Especially, the ambiguity of 'architecture' seems to have led to a misunderstanding. In this article, by applying Lessig's regulation theory to K. Pound's Social Control theory, the author verifies that 'architecture' in cyber-space is the code, and it in real-space today is information or date. And I suggest Lessig's 'regulator' corresponds to Pound's 'agency'. It is necessary that the framework of Lessig's regulation theory is grounded on another superior architecture in real-space, if Lessig desires his theory to be legal theory in real-space. The author suggests that Lessig tried to seek this architecture, but can not succeed it. It is in Pound's Social Control theory, especially ideal elements. Lessig is not aware that, so he could not find out it in himself. Otherwise he is one of legal realists today who tries to place the ideal element out of law. But if these indications are right he is at least one of the legal pragmatists today. If so. he could add the concept of 'market' and 'architecture' to agencies of Pound's Social Control theory. But the higher and higher the utility of agencies, 'market', 'information' or 'architecture' and so on which we have acquired, the more important the ideal element in legal theory. We jurist, especially legal philosophers, have been embracing this problem from the past to the future, because the utility requires a conscious control by human nature.

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