言語と当為

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書誌事項

タイトル別名
  • Language and "Ought"
  • ゲンゴ ト トウイ ホウ テツガク ト ホウ シャカイガク ノ キョウカイ
  • On the Boundary between Jurisprudence and Sociology of Law
  • 法哲学と法社会学の境界

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抄録

This essay sketches the methodological shift in legal theories in the postwar Japan.<br>From the end of the Second World War until the mid-1970s, Jurisprudence and Sociology of Law in Japan were dominated by the "science"-oriented approach, in which the "linguistic" scrutiny was emphasized both in methodology of legal interpretation and empirical study of legal practices. In this approach, the separation of the world of "Ought" and that of "Is" was crucial, and Jurisprudence dealt with the former while Sociology of Law the latter. Since the model of linguistic analysis applied was that of C.K. Ogden and I.A. Richards and that of behaviouristic science of the day, this approach was capable of illustrating the mechanism of the "social control" by law, but it could not at all shed light on the discursive process in "conflict resolution".<br>It was the Austinian or Wittgensteinian understanding of the "language" that has opened up a new approach towards the Law. As exemplified by the pioneering work by H.L.A. Hart, in this new perspective of the legal studies, the legal language is not treated as transparent medium of the meaning or the "mirror of the nature", but something performative which do things. Moreover, by introducing the notion of "institutional fact", this new approach of "law and language" challenges the conventional boundary between "Ought" and "Is", and, at the same time, between Jurisprudence and Sociology of Law. It also led to the introduction of the diverse constructionist approaches, such as ethnomethodology, discourse analysis, hermeneutics and narrative studies etc. into the legal studies, and opened up a possibility to explore the genesis of the "normative" out of legal practices.

収録刊行物

  • 法社会学

    法社会学 2002 (57), 62-79,259, 2002

    日本法社会学会

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