Theoretical Foundation Building for Philosophy of Law as Public Philosophy

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Our research aimed to reconstruct philosophy of law as public philosophy by investigating comprehensively into the philosophical basis and normative implications of the concept of publicness. It was focused on the three tasks : (1)assessing the comparative merits and demerits of the competing conceptions of publicness, and constructing a unifying theory that can adequately accommodate their tensions and turn them into fruitful complementarities ; (2)presenting new approaches to the traditional issues about the concept of law by exploring into the internal connection between the concept of law and that of publicness ; and (3)elucidating the mediating role of positive law and its institutional structure in turning the ideal theory of publicness into reality under non-ideal conditions. Our results are as followsTask (1) : We have found the following conclusions warranted. First, the competing traditional conceptions of publicness can be adequately characterized and contrasted by classifyi … More ng them into the three models : sphere-based theory, agent-based theory and process-based theory. Second, the traditional three models are inadequate to get over the legitimacy-crisis in contemporary pluralistic societies. Third, the new fourth model, reason-based theory that we constructed as an alternative to the traditional models can work as a unifying theory that overcomes their limits and defects and rescues their complementary merits by articulating the underlying principle that they need as their normative ground and constraint.Task (2) : We have shown that the conceptual distinction between the first-order and second-order publicness and the related one between publicness in law and publicness of law implied by reason-based theory give us the best theoretical vantage point from which we can elucidate the internal connections between law and publicness and identify the crucial normative issues neglected in the conceptual analyses and debates about the nature of law. To exemplify this point, we discussed the issues of duty to obey law, revolutionary creation of law, limits of law and othersTask (3) : We have reached the conclusion that positive law can effectively sustain and develop the public order of contemporary societies only if two conditions are met. First, to enhance the publicness in law, both legal interpretation and legislation must be informed and guided by a more principled deliberation on substantive and specific public values (the first-order publicness) than it is now the case. Second, to secure publicness of law, the institutional structure for legal decision making must be designed not just with the view of improving its quality in terms of the first-order publicness but also with full consideration for the second-order publicness. We have realized that legisprudence (the theory of legislation), now emerging in contemporary legal philosophy, can play an indispensable role in finding effective ways to meet these conditions and that we have to organize a new joint research in legisprudence to develop the present onePart of the results of our research was presented in international settings. Inoue published two papers in internationally coauthored books as shown in the References below. Inoue and Takikawa presented their papers at the World Congress of the international association of Legal and Social Philosophy (IVR) held at Granada in 2005. Takikawa's paper was published in the proceedings of this conference, and Inoue's paper is to appear in a new book edited by Luc Wintgens now in preparation for publication. Domestically, a book that is comprised of the contributions by all the investigators and collaborators for our project is forthcoming from Nakanishiya Shuppan Less