University of Tokyo 1S Law and Society

• Read a book that understands law from the perspective of system theory, which is a way of looking at it in social sciences.
• It’s heavy for a year, but if you want to challenge yourself, definitely give it a try.
  • The goal (understanding the book) is clear, and it seems good for someone like me who wants to peek into law.
• Well, but from what I heard from a senior at Bajiro Seminar, it doesn’t seem to be mainstream legal studies.
  • It’s a class where you find law interesting from a different perspective after studying law once.
  • It doesn’t seem like something a beginner in law should start with.
    • It’s dangerous to touch on heterodox fields without knowing the basics, as you may not be able to view them relatively/critically and end up accepting them as they are.
      • Additional note
        • As my impression after actually taking the class, the expression “heterodox” might not be accurate.
        • It’s more like looking at law from a meta perspective, not being biased to the left or right but from above.
        • So I think the above concerns were unnecessary.
          • I think it would be an interesting class to take after studying law.
  • But the content seems extremely interesting.
    • Although it’s a different field, my interest is right in the middle.
      • I’m very curious about the systems theory approach to society.
      • Should I take it as learning “a systems theory approach to society” rather than “law”?
    • If I take Tokyo University 1S Modern and Law and Professor Nishitsuchi’s class together, I can compare it to mainstream legal studies.
      • The omnibus lectures seem more concrete, so the approach seems different and good.

• The experience of theoretical reflection is “reasoning the whole within the framework of thought.” Therefore, exploring reflection theory can be stimulating for students in various fields.

  • It means it’s an exercise in capturing things from a meta perspective, right? (blu3mo)

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Notes below

Revival of Legal Theory Chapter 5 Valid

• What is “valid”?
  • Is it about whether the legal source (basis for the establishment of law) is properly established?
  • Legal source:
    • Violence (=politics)
      • It refers to things decided by the violence of the state or actors in the political system, such as the parliament.
    • Natural law
      • It assumes equality is good.
      • This judges law from a meta perspective, so it is considered a higher law.
        • Indeed, that’s true. (blu3mo)

Revival of Legal Theory Chapter 4 System II

• Talks about system theory and systems.
• Time: Moments

  • The moment that distinguishes the past from the future is the present.

  • “Past” and “future” exist at each moment, and the dividing point is called “present.”
    • Well, that’s true. (blu3mo)
• Applying system theory to law

  • Compression and re-recognition

  • Unlike the top-down approach in legal positivism, the system in system theory seems to be understood as a cycle.
    • Legal proposition -> Practice -> Practical knowledge -> Legal proposition
      • That’s the cycle.
    • Is this the chain of compression and re-recognition?
    • The law system is a regressive and horizontal dynamic network (from the perspective of system theory).
    • The regressive process is the cycle mentioned above.
    • The horizontal operation: It operates by interacting with other systems (such as the academic system).
    • Probably the core purpose of this class is to convey this perspective. (blu3mo)
  • The class imports Derrida’s ideas of “différance” and “repeatability.”
    • Différance: Difference + deferment
• Legal positivism assumed books as the medium, but system theory assumes computers.
  • There’s an update. (blu3mo)
• Historical or universal?
  • Rather than a timeless universal idea, it can be said that it is a product of the era born from the development of computers.- Alternatively, it can be said to be a timeless universal idea.
• On this point, there is ambiguity and fluctuation regarding Luhmann’s argument.
  • Vesting supports the latter.
  • Hmm, personally I can understand the former (blu3mo).
    • It’s like the laws of physics were already operating even before they were discovered.
    • Oh, but when it comes to law, the act of discovering laws itself can have an impact on the system, so it can be said that it is not universal?
      • Something like the influence of the academic system on the legal system.

• Luhmann’s approach: Paradox as a first principle & Autopoiesis.

• With the emergence of Gödel’s incompleteness theorems,
  • The idea that systems cannot derive their own consistency seems to have influenced it.
    • When applied to law,

    • If every law is positive law, then non-positive law is not law. However, if that were the case, the instructions or rules that make it possible to recognize this positive law would not be rules belonging to this positive law itself.

    • Is that so? (Seems like a leap) (blu3mo)
• It’s like the way we perceive law changes due to the development of computers, Exploring New Models through Implementation (blu3mo)(blu3mo).

Revival of Legal Theory Chapter 3: System I

• There is a systematic hierarchical structure.
  • This part is for self-study.
• Universal laws in natural philosophy.
  • The focus shifted from certainty of the object to certainty of the method of grasping the object.
    • By using mathematics and a rigorous perspective, the idea of universal laws emerged.
    • And then, even more rigorous perspectives like mathematics were used.
  • Example: Newton.
• This way of thinking led to the development of systematic, universal, and consistent laws.
  • From a modern perspective, it seems like a natural idea, but it didn’t exist before natural philosophy.
• Hobbes’ theory (the existence of the sovereign is established by the power emerging from the people) also has elements of natural philosophy, and it is influenced by this, they say.
  • Hobbes’ theory, although it has authoritarian aspects, also has liberal aspects in the sense that it places the sovereign and others on the same level, right? (blu3mo)
• Building a system in legal positivism.
  • Savigny: Historical school of law.
    • By depriving natural law of its significance, focus shifted to history.
      • Grasping the national character of law.
    • This is adopting legal positivism (looking only at positive law, ignoring other norms) as a methodology.
      • Specifically, jurisprudence positivism (≠ legal positivism).
        • Monism of “law as conceived by university legal researchers.”
        • It seems that German legal studies had a deep distrust of political legislation by princes and kings for a long time, so they wanted to deal with a systematic law derived from academia.
    • Trying to systematically organize human relationships existing in nations as law logically?
      • Hierarchy: Generality > Legal system > Legal propositions.
        • Why is “generality” at the top of the hierarchy?
          • Let’s build law based on the “generality” (something existing in the practical space) that generalizes the way of thinking existing in nations, that’s the meaning, I guess (blu3mo).
      • They say that incorporating the ambiguous concept of the national spirit into law and making it logically clear is what “systematization” means.
      • This assumes the homogeneity of the nation.
        • Can such a thing be generalized? (blu3mo)
          • It seems that before industrialization, society was not so stratified (blu3mo).
    • After homogeneity began to break down with industrialization, this way of thinking became increasingly difficult.
      • Kelsen’s pure theory of law still tries to uphold this systematic thinking.
        • However, Vesting criticizes this.- Chapter on understanding Norms, Programs, and Legal Propositions
• Legal Proposition
• Objective program and conditional program
• Discussion on what norms to consider when observing the law system from an academic perspective
• Study of Kant’s practical philosophy is necessary
• Discussion on revisiting norms while observing the interaction between the legal world and society

Chapter 1 of Revival of Legal Theory: Position and Function

• Discussion on system theory, legal theory lineage, and the concept of separating norms and existence
• Definition of theory, Legal Theory
• History of legal theory
• Legal System Theory

Introduction

• Why study law
• Paradox of Rules / Practical Space

Textbook “Revival of Legal Theory”

• Chapters 1-4 are general discussions
• Understanding the main points by reading chapters 1-4
• Chapters 5-7
• More specific considerations of the content from chapters 1-4

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• Overall impression
• It’s not satisfying to only understand complex topics
• Want to understand what the discussion is about
• What is the main topic?
• Reconstructing legal theory
• In other words, discussing theories that explain law and its surrounding society
• This seems like something that can only be done at Komaba campus (How to Make the Most of Six Months at the University of Tokyo)
• While there may be opportunities to study neuroscience in the future, it’s unlikely to encounter such an unusual class elsewhere
• Additionally, even if a similar class existed abroad, studying it in English would be even more challenging