Motoki MIURA - researchmap

Motoki MIURAPh.D. Student

Hitotsubashi University

14/Feb/20207th International Conference on Legal Institution Design, Nagoya University

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} Describe a fundamental issue in rule-following in law

} Offer a bird-eye view of further issues to be dealt with by Nishimura & Misaki

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◦ Inquiry into the fundamental issues of law

◦ Clarification of � 1) basic concepts – law, rights, duties, etc.� 2) fundamental values – justice, freedom, happiness,

etc.� 3) interpretive methodology

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} John Austin (1995=1832)◦ Command Theory of Law� Superior è Inferior� Wish/desire that X should do or forbear φ� Evil in case of noncompliance (non-φ)� Words/Signs◦ Sovereign model� Sovereign in an independent political society

� enjoys the habit of obedience� does not obey anyone.

� (Distinction between the law of God and that of human. ‘Legal positivism’)

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} Is law a gunman situation writ large?} H. L. A. Hart (The Concept of Law, 2012=1961)◦ Internal point of view◦ Law as ‘the union of Primary and Secondary Rules’� Primary Rules - obligation� Secondary Rules – change, adjudication, and

recognition� ‘Officials’ (or judges, lawyers, high-ranking public

servants)

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} Are we ‘puzzled’ people with the internal point of view?◦ ‘Why should not law be equally if not more

concerned with the ‘puzzled man’ or ‘ignorant man’ who is willing to do what is required, if only he can be told what it is? Or with the ‘man who wishes to arrange his affairs’ if only he can be told how to do it?’’ (Hart, 2012=1961, 40)◦ ‘Puzzled’ people are supposed to obey the law just

because it is the law. … and are we?(Schauer, 2015)

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} Generalized Rules ◦ Entrenchment and over/under-inclusive character◦ E.g.) No vehicles

} Asymmetry of authority◦ ‘Authority exists when and only when the source of

a directive provides a reason for the addressee to follow it independent of the content of that directive.’ (Schauer, 1991, 129)

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Your preference‘Do A’

Your preference‘Do B’

Directive‘Do A’ Do A Do B

9/17

Your preference‘Do A’

Your preference‘Do B’

Directive‘Do A’ Do A Do B

Directive ‘Do A’+ X Do A Do A

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} Saliency of coercion by law (Schauer, 2010&2015)} Possible means:◦ Sanctionand…◦ Reward� Subsidizing against undesired action (e.g. passive smoking)◦ Taxation◦ Reputation� Megan’s Law◦ Education

(Schauer, 1991&2015)◦ ‘Architecture’ (Lessig, 1998)

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} Benefits: Schauer’s model can…◦ accommodate diversity in reasons to obey the law� Not all of us are ‘puzzled’ people� Prudential, moral, compassion, etc.◦ provide a variety of means of governance� Track people to play by the rules� Switch the means if needed

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} We might fail to grasp what law is.

} Absence of legal thinking, ｔrimming the presense of judges◦ A carrot-and-stick system over the judges as well

as citizensè Less independence of judiciary

◦ Or, rather not by human?� Automation of judicial decisions (#2 Nishimura)

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} The problem of legal pluralism◦ From ‘Is law a gunman writ large?’

to ‘Can a mafia form a legal system?’� Powerful companies, etc.

◦ Not everything is called ‘law’� What is so special about law? (#3 Misaki)

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} A Twofold solution} 1) Theoretical solution◦ Coercion is an essential for law� Given the human nature, ‘voluntary co-operation in a

coercive system’ (Hart, 2012=1961, 198)◦ ‘Why law?’ as well as (not rather than) ‘How law?’� Schauer: Only empirical studies can provide us with

policy (2018).� Should everything be done by architecture?

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} 2) Normative solution◦ Guarantor of a rule by rules, or the ‘Rule of Law’� Thick or thin, substantive or formal (Tamanaha, 2004,

91-101)◦ Regulating coercive legal measures (not restricting)◦ Possible candidate� Internal morality of law (Fuller, 1969)

� 1 Generality, 2 promulgation, 3 no retroactive laws, 4 clarity of laws, 5 no contradictions,6 commanding the possible, 7 constancy through time, 8 congruence between official action and declared rule

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} What is law? (provisional)◦ A union of primary and secondary rules◦ General character of rules

} Problem: Asymmetry of Authority◦ Do we act in accordance with law just because it is

the law?} Solution?◦ Responsive means: sanction, reward, taxation,

reputation, education, architecture?} Going further…1) automation, 2) pluralism, 3)

coercion and regulation (if not restriction)

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Austin, J. (1995). The Province of Jurisprudence Determined. Wilfrid E. Rumble (ed.). Cambridge University Press. Originally published in 1832.

Fuller, Lon L. (1969) The Morality of Law (Revised ed.). Yale University Press.

Hart, H. L. A. (2012). The Concept of Law (3rd ed.). Oxford University Press. First edition published in 1961.

Schauer, F. (1991). Playing by the Rules. Clarendon Press.Schauer, F. (2010). Was Austin Right After All? On the Role of

Sanctions in a Theory of Law. Ratio Juris, 23.1, 1-21.Schauer, F. (2015). The Force of Law. Harvard University PressSchauer, F. (2018). Response: A Continuing Conversation.

Jurisprudence, 9.2, 385-393Tamanaha, Brian Z. (2004). On the Rule of Law: History, Politics,

Theory. Cambridge University Press Lessig, Lawrence. (1998). The New Chicago School. Journal of Legal

Studies, 27.2, 661-691.